negative effects of freedom of speech essay

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The good, the bad, and the ugly of free speech

• Pamela J. Forsythe

Daryl Tempesta is shown with tape over his mouth in protest in April, in Berkeley, Calif. Demonstrators gathered near the University of California, Berkeley campus amid a strong police presence and rallied to show support for free speech and condemn the views of Ann Coulter and her supporters. (AP Photo/Marcio Jose Sanchez, file)

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Negative Side-Effects of Free Speech

This essay will explore the negative side effects associated with the principle of free speech. It will discuss issues such as hate speech, misinformation, and the impact on social harmony. The piece will balance the value of free speech with its potential adverse outcomes in a diverse society. Additionally, PapersOwl presents more free essays samples linked to Censorship.

How it works

Since the beginning of our country, one of our founding principles has been the right to express yourself through speech, media, or any other means of communication. For a long time those that founded our country were under the control of the British, and the lack of freedom to do and say what was on your mind was very constrained.

With the American Revolution, we fought for the right to convey our beliefs without fear of another governing force taking action on you.

This right has obviously lasted for quite some time in our country, and as of lately it has been under examination by lawmakers and common citizens alike. Since the introduction of the internet and more specifically social media to our society, we have been granted the right to share whatever is on our minds whenever we please at the click of a button, and that may prove to be more harmful than beneficial.

With the rate of hate crimes rising every year and the number of threatening and hateful comments that have been put out on the internet to be seen by anyone and take an unknown toll on a number of people. With the number one right granted to us over 200 years ago under close examination, we must ask ourselves what we can do to potentially curtail the negative side-effects of free speech paired with social media, as well as whether limiting this right is unconstitutional or not.

To have a discussion on whether or not free speech is something that should be restrained, it is important to understand the broad history of freedom of speech not only in America, but in the world. The term “freedom of speech” actually originated in Greece with the greek word “parrhesia” which means “free speech” or “to speak candidly”, and it quickly became a very prominent part of Athenian democracy. Scholars, citizens, philosophers and more were all free to speak with one another on everyday matters, such as politics, religion, and even government criticisms in certain settings.

In America, it was introduced in December of 1791 as the first of the ten original amendments, allowing citizens the freedoms of speech, assembly, and religion. It never actually gave a hard definition for what falls under free speech, and that is what has led to the extensive discussion that has lasted for decades amongst citizens. Although this right is a very powerful one that is difficult to dispute, there have been many controversies surrounding what falls within the boundaries of free speech in the last couple centuries. Although freedom of speech gives you the power to share your opinions, criminal controversy and criminal anarchy laws are a kind of loophole that the government may use to suppress freedom fighters, abolitionists, and anyone else that may be protected under the First Amendment sharing information that our government may deem “harmful”.

One example of how these laws can be used to censor can be seen in the case of labor leader Eugene Debs who got 10 years in prison for what he said at a rally of peaceful workers under the Espionage Act. Another case involves feminist Margaret Sanger for giving a lecture on birth control, and later opening the first birth control clinic in Brooklyn. She was arrested just over a week after opening with many other arrests later in her life due to her feminist agenda, all charges being things that would not make her arrest unconstitutional.

In addition to taking action against those seen as potential public threats, the government also banned things like trade union meetings, any protests that might be considered to have radical beliefs, those who protested America joining the first world war, and many other exhibits of censorship that ignores that first amendment. All of these cases should have been considered unconstitutional at the time, but any policy as subjective as the first amendment will create debates like these and that is just a part of how civil discourse works.

As we come across new problems that face our society, it is our job to work together towards solutions that will ultimately better the way we live and conduct ourselves as a nation. Obviously these exhibits of unconstitutional censorship have slowed down since the early 20th century, but the debate has changed into something arguably even more contentious.

The issue of what is to be done about the growing concern of what is protected by our freedom of speech rights is a major debate. Although there are clearly things that aren’t protected under the first amendment, such as plagiarism and true threats (any threat that can be prosecuted under the law), things like hate speech are not actually regulated by the government at all, and this is where the problem begins.

Some will argue that we should not allow the government to decide what is hate speech because it is unconstitutional and we should not be censored, while others argue that hate speech is harmful and should be outlawed. There are many problems with both sides to these arguments, and it is up to us to decide how to go about finding the medium between the two. First off, the process of actually changing an amendment is a very long and tedious process.

Two thirds of both houses of Congress must first pass a proposed amendment, followed by three fourths of the state legislatures. In an article by Liz Button, a poll conducted by YouGov revealed “that 40 percent of Americans think government should prevent people from engaging in “hate speech.” This number has gone up dramatically since Trump has become president, as many think that he often abuses his power. Even if the amendment were to be changed, there will undoubtedly still be people who misuse things like social media or other means of communicating with others, but there will be a lot more regulation and hopefully that will diminish the amount of hate speech that is being put out there on a daily basis.

Through passing a new amendment prohibiting hate speech, those that are constant victims will also feel much safer especially in a time where they may feel outed because of their race, sexual orientation, etc. However, outlawing hate speech doesn’t stop people from having these ideas, and making it illegal doesn’t ensure that those who have those ideas won’t take action on them. As stated before, we as a society have to work towards finding the in-between, no matter how difficult it may be.

The primary reason that free speech has become a hot topic in the last couple decades is due to the growing platform of social media. As previously mentioned, the ability to communicate instantly with others and put your thoughts out into a place where the whole world can see it has yielded far more benefits than most people realize, making collaboration with others easier than most could’ve ever imagined. However, instant communication and social media platforms create a new environment for people to share things that are harmful or hurtful to others.

Freedom of speech really comes down to disallowing the government to censor the things you say, but the ideology that was originally associated with free speech has become very hazy in the last decade. Hunter Quon, a professor at Oregon State University, shared his thoughts in an article titled “Here are the Issues with the First Amendment”, followed by “just because you are free to say it, does not mean you should”. Personally I don’t think it could’ve been said any better because this takes the original meaning of free speech and uses it to make a very strong point about how we conduct ourselves in our modern society.

The article discusses a few ways in which he believes the meaning of free speech has been changed by the way people utilize it on social media. He agrees that freedom of speech is beneficial in that it allows us to discuss civil discourse in a productive manner, but goes into how many abuse this power and believe that no matter what they say it is protected by free speech. This is not incorrect, but it strays away from the original purpose of free speech.

Referring back to its original Greek meaning, speaking in a candid manner is a key aspect of productive discussion, and through participating in hateful speech that often includes common fallacies and hurtful opinions, we lose sight of why we implemented this right in the first place. Yes, free speech allows you to share your beliefs no matter how moral or insensitive they may be, but the purpose is lost when we speak hatefully or deceitfully about others. Once we start to utilize free speech in the way it was intended to be used, I believe that we as a society will be much more progressive in that we will be able to work through problems in a much more productive manner, as well as ultimately feel more united as a country.

It is difficult for a decent chunk of the American population to understand why things like hate speech aren’t “empty words” as many describe it, and that is due to many not identifying with “risk groups” such as African-Americans, members of the LGBTQ community, and immigrants. These people are more often than not the subjects of a majority of the hate speech that occurs on social media platforms today, and it is important to discuss the problems that these groups experience because of this.

Taking a look at the aftermath of Trump being elected, there were a number of cities that reported spikes in vandalism against civil liberties groups, as well as “bias crimes”(also known as hate crimes) immediately following the election. New York City, for example, reported a 115% spike in the aforementioned bias crimes, an astounding number that begs to be accredited to the election of that tyrant. In addition to a rise in crimes and violence against theses risk groups, psychological and societal harm must be considered as well.

Researchers everywhere have been examining the effects of hate speech on a given individual, and the findings are stacked against hate speech being extremely harmful both physically and emotionally. Not only has “neurological and sociological research has proven that hate speech leads to ‘a dehumanizing effect’ which lessens our empathy for other people” (Dr. Naomi Elster), but studies have actually proven that emotional pain triggers neurotransmitters that cause one to experience the same pain as if it were physical, and it doesn’t even have to be said directly to that individual to affect them.

When people attack these risk groups with hate speech, it creates a collective identity that these groups are lower on the pedestal than what is considered the norm. Through this, groups can end up feeling powerless and afraid of being who they truly are, and that is very damaging to our society. Hate speech, in and of itself, has the ability to tear a nation into pieces, and that is why it should be curtailed.

To conclude, free speech has been around for nearly two thousand years, a necessary part of society and the driver for productive civil discourse. Without it, we as a civilization would not have grown the way we have, and innovation would be lacking. With the power of social media and the internet, we have been able to use free speech to our advantage, bringing the alike together and creating a platform for people to discuss problems and work towards solutions that will better our nation.

However, it is very easy to lose sight of the true meaning of free speech, and it is more important now than ever that we conduct ourselves with a level of courtesy and respect for others so that we may be productive as a society. Through the appropriate usage of free speech, we will be more united as a whole and we can continue to progress towards equality and peace amongst everyone, regardless of who they are.

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17 Freedom of Speech Pros and Cons

When a person or a corporation has the right of the freedom of speech, then they are able to express any opinion without restraint or censorship. This approach to society is a democratic institution which dates back to the ancient Greek culture.

In the United States, the First Amendment guarantees the right to free speech for all people. Through this fundamental right, Americans have the freedom to protest, practice the religion they want, and express opinions without worrying about the government imprisoning them for criticism. It was adopted on December 15, 1971, as part of the Bill of Rights.

As with all modern democracies, even the United States places limits on this freedom. There are specific limits placed on this principle that dictate what people can or cannot say legally. The First Amendment does not specifically say what is or is not protected, but the Supreme Court has ruled that there are some forms which are not allowed.

Here are the freedom of speech pros and cons to consider with this element as part of a democratic society.

List of the Pros of Freedom of Speech

1. Freedom of speech protects each of us from the influence of special interests. When people have power, then they do whatever they can to retain it for as long as possible. That may include a change in the government’s constitution, a shift in a company’s Board of Directors, or the suppression of a minority group that threatens the way of life for the people involved. Having the freedom of speech reduces this power because it allows individuals to express criticism of those who are in power. There is no fear of losing personal freedom with this right because your opinion contributes to the overall conversation.

2. Freedom of speech eliminates compelled actions. When you have the freedom of speech, then the government cannot compel your actions in such a way that you are required to speak a specific message. You stay in control of what you say and how those words are expressed to the rest of society. Even if the government attempts to alter your words to their advantage, you will always have the opportunity to address the situation and correct the “mistakes” that others create in your work.

3. Freedom of speech promotes the free exchange of ideas. When a society operates in an area where free speech is given to all, then there is a more significant exchange of ideas that occur. It becomes almost impossible for those who are in power to suppress truths that they may not want to let out in the open. This process allows for progress to occur because people can learn from the experiences and perspectives of one another without worrying about the dogma of a “Big Brother” element in society, either corporate or government-based.

4. Freedom of speech can expose immoral or unlawful activities. When Edward Snowden decided to leak numerous state secrets to the press, he created an interesting question about the freedom of speech that we are still attempting to resolve in our society. Was such an action inflicting damage against the legitimate actions of the government? Or was the information he offered a way to bring light to actions that the government shouldn’t have been performing in the first place? It is tricky to find the line which exists when you must protect information or protect others. Having this right in society allows us to at least have that conversation.

5. Freedom of speech prevents the requirement to behave specific ways. Some people today might say that any speech which someone finds offensive should be banned. Imagine then that someone became offended by the mention of same-gender marriage – or the opposite, that they were offended by the mention of opposite-gender marriage. Freedom of speech allows people to make up their minds about what to share with others. Some people might be brazen with their approach, but that also means they might not have as many friends because of their attitude.

6. Freedom of speech advances knowledge for a society. When you have a chance to ask questions or share perspectives, then it creates more learning opportunities in society. This right makes it easier for all individuals to make a new discovery, suggest ideas, or exchange information freely without worrying about potential political consequences. Even if some of the ideas do not work after you get to try them, the process of testing contributes to the advancement of society as well. Thomas Edison famously made 1,000 unsuccessful attempts at the invention of the light bulb – each idea was a new step toward success.

7. Freedom of speech allows for peaceful changes in society. Some people use their freedom of speech as a way to incite hatred or violence. Others use it as a way to create the potential for peaceful change. Providing facts to individuals while sharing your opinion can persuade them to consider your perspective, even if they do not agree with it at the time. When this is your top priority with this right, then you are less likely as an individual to use violence as a way to create change. Although this process requires patience from all of us to be successful, it will usually get us to where we want to be.

8. Freedom of speech gives us an opportunity to challenge hate. Peter Tatchell is a human-rights activist who suggests that the best way to move forward as a society is to challenge the people who have differing views. He told Index in 2016 this: “Free speech does not mean giving bigots a free pass. It includes the right and moral imperative to challenge, oppose, and protest bigoted views. Bad ideas are most effectively defeated by good ideas, backed by ethics and reason, rather than bans and censorship.

9. Freedom of speech creates resiliency. Although exposing people to hate speech is hurtful and creates fear in some individuals, it also creates a resiliency in the debate. Instead of making your voice louder when confronting these ideas, you are improving your argument. When this action occurs, the action of observation and counter-observation make it possible to create an outcome where progress toward the greater good occurs. When we lack tolerance for differing, uncomfortable opinions, then it weakens the rights that so many people take for granted when there is something that they want to say.

List of the Cons of Freedom of Speech

1. Freedom of speech does not mean the freedom to have “all” speech. The concept behind the freedom of speech is that you should be able to express anything in a way that does not create legal consequences for you. Even if your opinion is unsavory, rude, or unpopular, this right gives you the option to express it. In the United States, there are four forms of speech which are not protected under the First Amendment.

• You cannot make an authentic threat against another individual. • It is illegal to defame others, including libel and slander. • You cannot plagiarize any copyrighted material. • It is illegal to share some obscene material, such as child pornography.

If you say something in the United States which insights illegal actions or solicit others to commit a crime, then your speech is not protected by the First Amendment either.

2. Freedom of speech can spread false information. Thanks to the rise of the Internet, the freedom of speech makes it easier for individuals to spread false information and outright lies, but then still pretend that this data is true. Research does not prove that vaccinations increase the risk of autism in children, but you will find “information” online that says this is true. Even though it is protected speech when this right is present, it could also lead to people getting or transmitting a preventable disease. In 2019, over 60 people in Washington and Oregon contracted the measles, with almost all of the cases being unvaccinated children.

3. Freedom of speech can incite violence against other people. People must be held responsible for the personal choices that they make. When someone commits an act of violence against another because they were incited by hate speech to do so, then they made the choice to break the law. The person who created the outcome through the encouragement of their language holds some responsibility here as well. If online radicalization causes people to join ISIS, then shouldn’t political radicalization that causes individuals to attack journalists be treated in the same way?

4. Freedom of speech creates a paradox. When we look at the modern idea that creates the foundation for freedom of speech, it really isn’t free. The government is still dictating some of the things that we can or cannot say. This freedom, and this writer, cannot exist if people are not allowed to make assertions that are distasteful to the majority, even if the statements are hurtful to other people.

5. Freedom of speech can create a mob mentality. In 2012, Oatmeal and FunnyJunk had a dust-up over the use of images that author Matthew Inman did not authorize for distribution. Charles Carreon made a public splash as the attorney for FunnyJunk, which created a back-and-forth which eventually led the Internet to turn against him. In return for those actions, Carreon labeled everyone he thought of as an “instigator” as a “rapeutationist.” When one person offers an opinion that others find to be believable, it creates a mob mentality on both sides of the equation. When this happens, it can destroy a person’s livelihood quickly.

6. Freedom of speech can cause people to endure verbal abuse. Voltaire’s biographer summed up the views of the philosopher like this: “I don’t agree with what you say, but I will defend to the death your right to say it.” When freedom of speech is treated this way, then it creates a situation where people must endure sexist or racist verbal abuse. Is it really beneficial for society to allow individuals to use derogatory terms for the purpose of causing discomfort?

We already know that there can be poor health outcomes associated with the fear of violence and crime. Dr. Erin Grinshteyn of UCSF conduced an online survey platform that asked students to rate their fear of experiencing 11 different crimes that included physical assault, hate speech, vandalism, and microaggressions among others. Her findings showed that students in racial minority groups feared violence more than Caucasians. Ongoing fear is a risk factor for mental health declines as well.

7. Freedom of speech will eventually polarize society. When people are allowed to express their opinions freely, then it creates three primary outcomes. Some people will agree with the statement, others will disagree, and a middle group won’t care one way or the other. People tend to hang out in circles where others think and feel in similar ways, which means they will gather around like-minded individuals to spend most of their time.

Pew Research found as early as 2014 that 92% of Republicans are to the political right of the median Democrat, while 94% of Democrats were to the left of the median Republican. 36% of GOP supporters even felt that members of the opposite party were a threat to the wellbeing of the country. When there are ideological silos created from free speech, it eventually polarizes society into groups that struggle to get along with each other.

28% of people say that it is important to them to live in a place where most others share their political views. For people who label themselves as “consistently conservative,” that figure rises to 50%, and 63% of that same group says that most of their close friends share their political views.

8. Freedom of speech reduces the desire to compromise. Pew Research also discovered that when people are consistently liberal or conservative with their freedom of speech, their idea of what compromise entails begins to shift. Instead of believing that both sides must have a give-and-take to create an outcome, the definition becomes one in which their side gets what they want while the other side gets as little as possible. This perspective makes it a challenge for society to function because those on each extreme are consistently battling the other extreme because each views themselves as being the superior contributor to society.

A Final Thought on the Pros and Cons of Freedom of Speech

The pros and cons of freedom of speech suggest that there should be some limits in place for the general good of society. Allowing people to say or do whatever they want at any time increases the risk for harm. Do we really want to live in a world where the creation and distribution of child pornography is a protected right?

Once we start deciding “good” and “bad” speech, it opens the door for abuses to occur. That is why the Supreme Court in the United States has worked hard for over 200 years to create rigid definitions of what is helpful and what is harmful. The goal is to allow people to express contrary opinions without the threat of legal reprisal. This structure promotes an exchange of ideas, which then encourages the learning processes for everyone.

Table of Contents

Arguments for freedom: the many reasons why free speech is essential.

• David Hudson

“The matrix, the indispensable condition, of nearly every other freedom”— that’s how Justice Benjamin Cardozo referred to freedom of speech. 

This eminent Justice is far from alone in his assessment of the lofty perch that free speech holds in the United States of America. Others have called it our blueprint for personal liberty and the cornerstone of a free society. Without freedom of speech, individuals could not criticize government officials, test their theories against those of others, counter negative expression with a different viewpoint, or express their individuality and autonomy. 

The First Amendment of the United States Constitution provides that “Congress shall make no law . . . abridging the freedom of speech.” This freedom represents the essence of personal freedom and individual liberty. It remains vitally important, because freedom of speech is inextricably intertwined with freedom of thought. 

Freedom of speech is closely connected to freedom of thought, an essential tool for democratic self-governance.

“First Amendment freedoms are most in danger when the government seeks to control thought or to justify its laws for that impermissible end,” warned Justice Anthony Kennedy in Ashcroft v. Free Speech Coalition (2002). “The right to think is the beginning of freedom, and speech must be protected from the government because speech is the beginning of thought.”

There are numerous reasons why the First Amendment has a preferred position in our pantheon of constitutional values.  Here are six.

Self-governance and a check against governmental abuse

Free speech theorists and scholars have advanced a number of reasons why freedom of speech is important. Philosopher Alexander Meiklejohn famously offered that freedom of speech is essential for individuals to freely engage in debate so that they can make informed choices about self-government. Justice Louis Brandeis expressed this sentiment in his concurring opinion in  Whitney v. California (1927): “[F]reedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth.”

In other words, freedom of speech is important for the proper functioning of a constitutional democracy. Meiklejohn advocated these ideas in his seminal 1948 work, “ Free Speech and Its Relation to Self-Government .” Closely related to this is the idea that freedom of speech serves as a check against abuse by government officials. Professor Vincent Blasi referred to this as “the checking value” of free speech. 

Liberty and self-fulfillment

The self-governance rationale is only one of many reasons why freedom of speech is considered so important. Another reason is that freedom of speech is key to individual fulfillment. Some refer to this as the “liberty theory” of the First Amendment.

Free-speech theorist C. Edwin Baker writes that “speech or other self-expressive conduct is protected not as a means to achieve a collective good but because of its value to the individual.” Justice Thurgood Marshall eloquently advanced the individual fulfillment theory of freedom of speech in his concurring opinion in the prisoner rights case  Procunier v. Martinez (1974) when he wrote: “The First Amendment serves not only the needs of the polity, but also those of the human spirit—a spirit that demands self-expression. Such expression is an integral part of the development of ideas and a sense of identity. To suppress expression is to reject the basic human desire for recognition and affront the individual’s worth and dignity.”

The search for truth and the ‘marketplace of ideas’ metaphor

Still another reason for elevating freedom of speech to a prominent place in our constitutional values is that it ensures a search for truth. 

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Justice Oliver Wendell Holmes expressed this idea in his “Great Dissent” in  Abrams v. United States (1919) when he wrote that “the ultimate good desired is better reached by free trade of ideas—that the best test of truth is the power of the thought to get itself accepted in the competition of the market.” This language from Holmes led to one of the most pervasive metaphors in First Amendment jurisprudence—that of the “marketplace of ideas.” 

This concept did not originate with Holmes, as John Milton in the 17th century and John Stuart Mill in the 19th century advanced the idea that speech is essential in the search for truth in their respective works, “Areopagitica” (1644) and “On Liberty” (1859). Milton famously wrote: “Let [Truth] and Falsehood grapple, whoever knew Truth put to the worse, in a free and open encounter?” For his part, Mill warned of the “peculiar evil of silencing the expression of an opinion” explaining that “[i]f the opinion is right, they are deprived of the opportunity of exchanging error for truth; if wrong, they lose what is almost as great a benefit, the clearer perception and livelier impression of truth, produced by its collision with error.” 

Informational theory

The marketplace metaphor is helpful but incomplete. Critics point out that over the course of history, truth may not always prevail over false ideas. For example, Mill warned that truth sometimes doesn’t triumph over “persecution.” Furthermore, more powerful individuals may have greater access to the marketplace and devalue the contributions of others. Another critique comes from those who advocate the informational theory of free speech. 

Coronavirus and the failure of the 'Marketplace of Ideas'

“If finding objective truth were the only value of freedom of expression, there would be little value to studying history,”  explains Greg Lukianoff of FIRE . “ Most of human thought in history has been mistaken about its assumptions and beliefs about the world and each other; nevertheless, understanding things like superstitions, folk medicine, and apocryphal family histories has significance and value.” 

Under this theory, there is great value in learning and appreciating what people believe and how they process information. Lukianoff calls the metaphor for the informational theory of free speech “the lab in the looking glass.” The ultimate goal is “to know as much about us and our world as we can,” because it is vitally “important to know what people really believe, especially when the belief is perplexing or troubling.”

Safety valve theory

Another reason why freedom of speech is important relates to what has been termed the “safety valve” theory. This perspective advances the idea that it is good to allow individuals to express themselves fully and blow off steam.

If individuals are deprived of the ability to express themselves, they may undertake violent means as a way to draw attention to their causes or protests. Justice Brandeis advanced the safety valve theory of free speech in his concurring opinion in Whitney v. California (1927) when he wrote:

Those who won our independence believed . . . that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies.

Tolerance theory

Free speech has also been construed to promote the virtue of tolerance: If we tolerate a wide range of speech and ideas, this will promote greater acceptance, self-restraint, and a diversity of ideas. 

Lee Bollinger advanced this theory in his 1986 work “The Tolerant Society.” This theory helps explain why we should tolerate even extremist speech. As Justice Holmes wrote in his dissent in  United States v. Schwimmer (1929), freedom of speech means “freedom for the thought that we hate.” This means that we often must tolerate extremist speech. As Chief Justice John G. Roberts, Jr. wrote in  Snyder v. Phelps (2011), we don’t punish the extremist speaker; instead “we have chosen a different course—to protect even hurtful speech on public issues to ensure that we do not stifle public debate.”

Freedom of speech holds a special place in American law and society for many good reasons.

As Rodney Smolla writes in “Free Speech in an Open Society,” “[t]here is no logical reason . . . why the preferred position of freedom of speech might not be buttressed by multiple rationales.” Freedom of speech is closely connected to freedom of thought, an essential tool for democratic self-governance; it leads to a search for truth; it helps people express their individuality; and it promotes a tolerant society open to different viewpoints. 

In sum, it captures the essence of a free and open society.

• Free Speech

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Events, news & press, free speech.

While many Americans take free speech for granted, the tradition is far from universal. Many developed nations restrict speech that is deemed hurtful or offensive. And in the United States, there is increasing sentiment that some speech is not worth protecting. Is it time to reconsider the nation’s free-speech orthodoxy?

Nearly everyone has experiences that contradict the children’s rhyme “sticks and stones may break my bones, but words will never hurt me.” Words can be painful. And that is particularly true in the age of social media, when a viral tweet or insensitive post can hurt feelings and damage reputations.

Despite this reality, the United States maintains a strong legal and cultural tradition of free speech. While many Americans take it for granted, the tradition is far from universal. Many developed nations restrict speech that is deemed hurtful or offensive. And in the United States, there is increasing sentiment that some speech is not worth protecting.

Is it time to reconsider the nation’s free-speech orthodoxy?

Part 1: What is freedom of speech?

The First Amendment of the Constitution says:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

At its core, the Constitution’s robust protections for speech are intended to preserve and protect liberty. Hoover Institution senior fellow Peter Berkowitz  highlights  how the First Amendment connects freedom of speech with liberty:

Its position in the text of the First Amendment symbolizes free speech’s indissoluble connection to religious and political liberty. One can neither worship (or decline to worship) God in accordance with one’s conscience, nor persuade and be persuaded by fellow citizens, if government dictates orthodox opinions and punishes the departure from them. Indeed, the more authorities—whether formally through the exercise of government power, or informally through social intolerance—prescribe a single correct view and demonize others, the more citizens lose the ability to form responsible judgments and defend the many other freedoms that undergird human dignity and self-government.

Freedom of speech protects your right to say things that are disagreeable. It gives you—and everyone else—the right to criticize government policies and actions.

Part 2: What isn’t protected?

It sounds straightforward, “Congress shall make no law . . . abridging the freedom of speech,” but the First Amendment isn’t absolute. Hoover Institution senior fellow Richard Epstein  offers a framework  for how to think about free speech and its limits:

The First Amendment clearly covers the spoken word, written pamphlets, and books. By analogy, it also reaches other expressive activities like drawing, dancing, and acting. But no one could claim that it also protects mayhem, murder, defamation, and deceit. The only way to draw the right line—that between expression and violence—is to recognize that the First Amendment is as much about  freedom  as it is about speech. The necessary theory of freedom applies equally to all forms of speech and action, and it draws the line at the threat or use of force, even if the former counts as speech and the latter does not.

As the video below explains, the general principle of the nation’s free-speech rules is that your speech is protected so long as it doesn’t harm others.

But this raises the question: what should count as a harm? In our legal system there are well-defined examples where speech is not protected, because it hurts someone. You can’t lie about someone to harm their reputation. That’s called defamation. You can’t misrepresent the truth to people for your own gains. That’s fraud. And the First Amendment doesn’t permit you to advocate for the immediate use of force against someone else.

But there are other times when speech is protected even when someone may claim to be harmed. Mean or hateful words that may be true or a matter of opinion are generally protected by the First Amendment, even if they offend someone. You may think that is wrong. And there are plenty of countries that agree with you. Many countries have enacted strong hate-speech laws that prohibit derogatory remarks about a person’s race or religion. Peter Berkowitz  summarizes  new restrictive speech laws recently enacted by other nations:

In 2017, Germany enacted a law that obliges social media networks to be more “diligent in policing ‘hate speech’ on their platforms.” The next year, France adopted a similar law. A substantial plurality of British voters in 2018 believed that people do not feel free to express their opinions on “important issues.”

But there is a danger to these rules. As the video below highlights, enacting laws that ban offensive speech mean that “the people who disagree with you the  most  would have the most control over what you’re allowed to say.”

In an interview with Tunku Varadarajan , Richard Epstein explains the consequences of laws that ban offensive speech: “Everybody offends everybody a large fraction of the time. So, if I am insulting to you because you’re a progressive and you’re insulting to me because I’m a conservative, and if we allow both people to sue, then neither can talk.” The end result is that debate and free expression are stifled.

Part 3:  What about private restrictions on speech?

The First Amendment constrains the federal government from infringing on most speech, and the Fourteenth Amendment extended these constraints to state and local governments. But the First Amendment’s protections don’t apply to the personal and private interactions of people or businesses. If people disagree with you, they are free to stop listening. And companies are generally free to stop doing business with people with whom they disagree. Nor is anyone obligated to provide a forum for anyone else’s speech. Richard Epstein  explains:

Freedom of speech means that you have the right to use your own resources to advance your own causes. But it doesn’t give you, in the name of free speech, the right to take somebody’s telephone, somebody’s house, or somebody’s anything in order to use it for your own purposes.

But while private actors are not bound by the First Amendment, many private institutions have thrived because they have embraced a culture of free speech. For example, private universities have historically maintained broad academic freedoms for its faculty and students that allow for robust dissent on campuses. Recently, however, some universities have adopted policies that take a narrower view of what is acceptable speech.  Here’s Peter Berkowitz :

At universities, America’s founding promise of individual freedom and equality under law is often treated as irredeemably tainted by racism and sexism, colonialism and imperialism. In some cases, free speech is placed on the list of “incorrect phrases” that ought not be uttered, because it belongs among the “impure thoughts” of which minds must be cleansed.

Berkowitz notes, “Ninety percent of American universities censor speech or maintain policies that could authorize administrators to engage in censorship.” These rules are well intentioned. They are intended to promote a safe and welcoming environment for students and faculty. But a rejection of free speech has significant costs.

Part 4:  What are the benefits of free speech?

Without protections for speech—particularly for disagreeable speech—our liberties are more easily threatened. But free speech is important even beyond its value to our liberty. The free exchange of ideas—even ones that are disagreeable—is key to future prosperity. Hoover Institution research fellow Ayaan Hirsi Ali  explains  why:

Societies since the Enlightenment have progressed because of their willingness to question sacred cows, to foster critical thinking and rational debate. Societies that blindly respect old hierarchies and established ways of thinking, that privilege traditional norms and cower from giving offense, have not produced the same intellectual dynamism as Western civilization. Innovation and progress happened precisely in those places where perceived “offense” and “hurt feelings” were not regarded as sufficient to stifle critical thinking.

Diversity of thought isn’t just a matter of freedom; it is also an important ingredient to progress. When society discourages dissent or governments dictate the bounds of acceptable opinions, there is less innovation, and incorrect yet popular ideas go unchallenged. Economist Milton Friedman explains how diversity and freedom of all types are integral to a thriving society in this video:

Part 5: How do we preserve freedom of speech?

Preserving our liberties and ensuring a vibrant, innovative society requires free speech. Well-intentioned efforts to protect people from speech that offends is thus a threat to our free and prosperous society. What steps can we take to ensure free speech remains a cherished value for future generations?

Hoover Institution research fellow David Davenport  makes a case  for reprioritizing civic education in US schools. Testing reveals that a shrinking number of students are knowledgeable about US history. Increased funding and improved curriculum for civic education will ensure that future generations understand and appreciate the nation’s tradition of free speech.

Higher education also has a role to play. Public universities are generally bound by the First Amendment, but all universities—public and private—should remember the value academic freedom brings to campuses and to all of society. As Richard Epstein  argues :

The First Amendment prohibition does not allow one person to commandeer the property of another for his own purposes. But in terms of their roles in society, there is a critical difference between a university and a private business: Universities have as their central mission the discovery and promotion of knowledge across all different areas of human life.

Part 6:  Conclusion

All too often, support for free speech depends on who is talking and what is being said. Partisanship too frequently shapes our view of just how expansive the First Amendment should be. But we should remember how the nation’s strong tradition of free speech has helped protect the freedoms of all Americans. It has empowered citizens to speak against and undo unjust laws. And it has helped create a vibrant, diverse economy with widespread prosperity.

Does this mean there is nothing we can do about speech we find disagreeable or offensive? Certainly not. As  the video above explains : “The way to respond to offensive speech isn’t to use force—it’s to counter with persuasive speech of your own.”

Citations and Further Reading

In his essay  Rewriting the First Amendment ,  Richard Epstein explains the dangers of a proposed constitutional amendment to restrict spending for political speech.

In  an interview on  Uncommon Knowledge ,  Ayaan Hirsi Ali emphasizes the importance of free speech in addressing the nation’s racial inequalities.

To view the original article, click here .

View the discussion thread.

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Student Opinion

Why Is Freedom of Speech an Important Right? When, if Ever, Can It Be Limited?

By Michael Gonchar

• Sept. 12, 2018

This extended Student Opinion question and a related lesson plan were created in partnership with the National Constitution Center in advance of Constitution Day on Sept. 17. For information about a cross-classroom “Constitutional Exchange,” see The Lauder Project .

One of the founding principles of the United States that Americans cherish is the right to freedom of speech. Enshrined in the First Amendment to the Constitution, freedom of speech grants all Americans the liberty to criticize the government and speak their minds without fear of being censored or persecuted.

Even though the concept of freedom of speech on its face seems quite simple, in reality there are complex lines that can be drawn around what kinds of speech are protected and in what setting.

The Supreme Court declared in the case Schenck v. United States in 1919 that individuals are not entitled to speech that presents a “clear and present danger” to society. For example, a person cannot falsely yell “fire” in a crowded theater because that speech doesn’t contribute to the range of ideas being discussed in society, yet the risk of someone getting injured is high. On the other hand, in Brandenburg v. Ohio in 1969, the court declared that even inflammatory speech, such as racist language by a leader of the Ku Klux Klan, should generally be protected unless it is likely to cause imminent violence.

While the text and principle of the First Amendment have stayed the same, the court’s interpretation has indeed changed over time . Judges, lawmakers and scholars continue to struggle with balancing strong speech protections with the necessity of maintaining a peaceful society.

What do you think? Why is the freedom of speech an important right? Why might it be important to protect even unpopular or hurtful speech? And yet, when might the government draw reasonable limits on speech, and why?

Before answering this question, read the full text of the amendment. What does it say about speech?

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Next, read these excerpts from three recent articles about free speech cases that might affect your life:

In a September 2017 article, “ High Schools Threaten to Punish Students Who Kneel During Anthem ,” Christine Hauser writes:

The controversy over kneeling in protest of racial injustice moved beyond the world of professional sports this week, when a number of schools told students they were expected to stand during the national anthem. On Long Island, the Diocese of Rockville Centre, which runs a private Catholic school system, said students at its three high schools could face “serious disciplinary action” if they knelt during the anthem before sporting events.

In a June 2018 article, “ Colleges Grapple With Where — or Whether — to Draw the Line on Free Speech ,” Alina Tugend writes:

It has happened across the country, at small private colleges and large public universities: an invited guest is heckled or shouted down or disinvited because of opposing political views. And the incident is followed by a competing chorus of accusations about the rights of free speech versus the need to feel safe and welcome. It’s something those in higher education have grappled with for decades. But after the 2016 presidential election and the increasing polarization of the country, the issue has taken on a new resonance.

In another June 2018 article, “ Supreme Court Strikes Down Law Barring Political Apparel at Polling Places ,” Adam Liptak writes:

The Supreme Court on Thursday struck down a Minnesota law that prohibits voters from wearing T-shirts, hats and buttons expressing political views at polling places. In a cautious 7-to-2 decision, the court acknowledged the value of decorum and solemn deliberation as voters prepare to cast their ballots. But Chief Justice John G. Roberts Jr. wrote that Minnesota’s law was not “capable of reasoned application.”

Students, read at least one of the above articles in its entirety, then tell us:

— Why is the freedom of speech an important right? Why do you think it’s worth protecting?

— What is the value in protecting unpopular speech?

— The Supreme Court has determined that certain types of speech, such as fighting words, violent threats and misleading advertising, are of only “low” First Amendment value because they don’t contribute to a public discussion of ideas, and are therefore not protected. Even though the text of the First Amendment does not make any distinction between “low” and “high” value speech, do you think the court is correct in ruling that some categories of speech are not worth protecting? What types of speech would you consider to be “low” value? What types of speech are “high” value, in your opinion?

— What do you think about the free speech issues raised in the three articles above? For example:

• Should students be allowed to kneel during the national anthem? Why? • Should colleges be allowed to forbid controversial or “offensive” guests from speaking on campus? Why? • Should individuals be able to wear overtly political T-shirts or hats to the polling booth? Why?

— When might the government draw reasonable limits to the freedom of speech, and why?

— We now want to ask you an important constitutional question: When does the First Amendment allow the government to limit speech? We want to hear what you think. But to clarify, we’re not asking for your opinion about policy. In other words, we’re not asking whether a certain type of speech, like flag burning or hate speech, should be protected or prohibited. Instead, we’re asking you to interpret the Constitution: Does the First Amendment protect that speech?

Do your best to base your interpretation on the text of the amendment itself and your knowledge of how it can be understood. You may want to consult this essay in the National Constitution Center’s Interactive Constitution to learn more about how scholars and judges have interpreted the First Amendment, but rest assured, you don’t have to be a Supreme Court justice to have an opinion on this matter, and even the justices themselves often disagree.

— When you interpret the First Amendment, what do you think it has to say about the free speech issues raised in the three articles. For example:

• Does the First Amendment protect the right of students at government-run schools (public schools) to protest? What about students who attend private schools? • Does the First Amendment allow private colleges to prohibit certain controversial speakers? What about government-run colleges (public colleges)? • Finally, does the First Amendment protect voters’ right to wear whatever they want to the polling booth?

Are any of your answers different from your answers above, when you answered the three “should” questions?

— When scholars, judges and lawmakers try to balance strong speech protections with the goal of maintaining a peaceful society, what ideas or principles do you think are most important for them to keep in mind? Explain.

Students 13 and older are invited to comment. All comments are moderated by the Learning Network staff, but please keep in mind that once your comment is accepted, it will be made public.

The Threat to Free Speech, Beyond ‘Cancel Culture’

Plus: Attacks against Ketanji Brown Jackson, and the scholar-snitch problem.

This is an edition of Up for Debate, a newsletter by Conor Friedersdorf. On Wednesdays, he rounds up timely conversations and solicits reader responses to one thought-provoking question. Every Friday, he publishes some thoughtful replies. Sign up for the newsletter here.

Question of the Week

“The University of Pennsylvania’s Lia Thomas made history on Thursday as the first known transgender athlete to win an NCAA swimming championship when she took the title in the 500m freestyle,” the Guardian reported last week. The victory intensified an ongoing debate about what rules should govern transgender athletes in high school, college, and professional sports.

What do you think about this, and why? What, if anything, are you unsure about? If you could ask one question of someone who doesn’t share your position to better understand theirs, what would it be?

Email your thoughts to [email protected] . I’ll publish a selection of correspondence in Friday’s newsletter.

Conversations of Note

Last week, The New York Times published an editorial, “ America Has a Free Speech Problem ,” that fleshed out an argument that “cancel culture” poses a threat to pluralism and deliberative democracy.

Critics of the editorial pounced on a glaring flaw in its first sentence––more specifically, the final seven words of that sentence: “For all the tolerance and enlightenment that modern society claims, Americans are losing hold of a fundamental right as citizens of a free country: the right to speak their minds and voice their opinions in public without fear of being shamed or shunned.” A fundamental right to speak “without fear of being shamed or shunned” would be incompatible with something the First Amendment properly protects—shaming or shunning others.

I suspect that the editorial board itself would concede that point, because it sometimes shames others in its own commentary, and because the rest of its free-speech editorial is narrower in its claims.

This passage aligns much more closely with my thinking:

“People should be able to put forward viewpoints, ask questions and make mistakes and take unpopular but good-faith positions on issues that society is still working through—all without fearing cancellation,” the editorial asserted, because

freedom of speech is the bedrock of democratic self-government. If people feel free to express their views in their communities, the democratic process can respond to and resolve competing ideas. Ideas that go unchallenged by opposing views risk becoming weak and brittle rather than being strengthened by tough scrutiny. When speech is stifled or when dissenters are shut out of public discourse, a society also loses its ability to resolve conflict, and it faces the risk of political violence.

Of course, that raises a question: What is “cancellation,” exactly? I try to avoid that term in favor of more particular claims, like these: 1) Deliberative democracy depends on the willingness of citizens to air earnestly held positions, including wrongheaded positions, on matters that society is still working through. 2) Fulfilling attendant civic obligations sometimes requires the courage to air ideas publicly despite the possibility that those ideas will be criticized or even ridiculed. 3) Alas, many Americans self-censor on issues that society is still working through not because they are unwilling to have their ideas tested by fire, but because they so frequently see others personally and viciously attacked, arbitrarily and capriciously punished, or unjustly shamed or shunned by digital mobs who reject liberal speech norms. When others complain about cancel culture, those various speech-chilling treatments of others is often what I understand them to mean, granting that the term is underdefined, inconsistently applied, and sometimes abused.

As the attorney Ken White sees it , I’m going way too easy on the New York Times editorial board, partly due to its invocation of the term cancel culture , which he dislikes even more than I do.

His grievances:

We don’t have anything resembling a consensus on what “cancel culture” is and we’re not having a serious discussion about defining it[.] We don’t have a consensus on how we reconcile the interests of speakers and responders, and we’re not making a serious attempt to reach one. We don’t have a consensus about what to do about it and we’re not trying to reach one.

He continues:

People complaining about “cancel culture” frequently suggest that it chills speech. Perhaps. But so does a vague denunciation of other people’s speech. In responding to bumptious defamation threats, I often say “vagueness in a defamation threat is the hallmark of meritless thuggery.” That is, if you say someone’s speech is defamatory and threaten to sue over it, without specifying which exact speech is defamatory, you’re likely just trying to chill speech, not redress genuine defamation. Similarly, if you denounce “cancel culture” without citing specific examples and suggesting how people should act differently, you’re closer to chilling speech than fixing it. Talking about “cancel culture” can be a genuine expression of concern that some response speech is disproportionate and outside our society’s norms, or it can be a partisan attempt [at] delegitimizing entire areas of conversation—usually race, gender, and sexuality. When I read attacks on “cancel culture” I’m often left wondering what I’m being asked not to do.

I am sympathetic to White’s concerns. For more, see the related debate he participated in with Greg Lukianoff of the Foundation for Individual Rights in Education, as well as Jonathan Rauch’s attempt to specify the circumstances in which cancel culture complaints should be taken seriously. Additional attempts to clarify terms and adjudicate what America’s free-speech norms ought to be are necessary––the cancel culture debate might be muddled, as Cathy Young illustrates in her analysis of recent kerfuffles, but the incidents that fuel it are ongoing.

To cite some examples from March:

In The Atlantic , I detailed excesses in the ongoing attempts to “cancel” all things Russian.

After covering very recent attempts by law students at UC Hastings and Yale to prevent controversial guest speakers from airing their views, the journalist and Yale Law alum David Lat wrote ,

I can’t believe I’m having to write a defense of a free-speech regime in which people listen respectfully to the other side, even when they find the other side’s views abhorrent, as opposed to a free-speech regime where “freedom” belongs to whoever can yell the loudest. You would have expected—and hoped—that law students, as future lawyers, would understand the value of the former and the problems with the latter.

After a student group at the University of Virginia invited former Vice President Mike Pence to speak on its Charlottesville campus, the student newspaper, The Cavalier Daily , published an editorial opposing his “platforming,” arguing that “so-called ‘perspectives’ should not be welcomed when they spread rhetoric that directly threatens the presence and lives of our community members.”

An essay collection was nominated for a literary award, then pulled from consideration after its author took to Twitter to defend another author from social-media attacks she believed to be unjust.

Pen America, an advocacy organization that favors free expression, is tracking numerous bills in state legislatures that would restrict or punish the expression of certain ideas in educational settings.

Kudos to Andy McCarthy of National Review , who would like to see a judicial nominee rejected by the Senate, but came to her defense anyway in the matter of a specific attack that he found unfair:

I would oppose Judge Ketanji Brown Jackson because of her judicial philosophy, for the reasons outlined by Ed Whelan last week. I address that in a separate post . For now, I want to discuss the claim by Senator Josh Hawley (R., Mo.) that Judge Jackson is appallingly soft on child-pornography offenders. The allegation appears meritless to the point of demagoguery.

The deep-in-the-weeds details are here .

Provocations of the Week

In The Chronicle of Higher Education , Laura Kipnis, the Northwestern University cultural critic, asks, “ Why Are Scholars Such Snitches? ” In her telling, “the university bureaucracy has been hijacked for political grudge matches and personal vendettas.” She writes of her observations and experiences:

There are, to be sure, right-wing students and organizations dedicated to harassing professors whose politics they object to, but that’s to be expected. What’s not is the so-called campus left failing to notice the degree to which the “carceral turn” in American higher ed—the prosecutorial ethos, the resources reallocated to regulation and punishment—shares a certain cultural logic with the rise of mass incarceration and over-policing in off-campus America. Or that the zeal for policing intellectual borders has certain resonances with the signature tactics of Trumpian America, for which unpoliced borders are equally intolerable … Is snitching a function of character, the result of a trait you either possess or don’t? Or is it rather that certain institutional contexts, like prisons, incentivize snitching? In higher ed’s overfunded, secretive, and ever-expanding punishment infrastructure (hiring for which now vastly outstrips new faculty lines), glutted with vague regulations about everything from romance to comportment to humor, snitching has become a blood sport.

In the Jacobin article “ The Right Is Still the Enemy of Freedom ,” Branko Marcetic argues,

There’s a narrative taking shape in certain corners of the political discourse right now that goes something like this: Democrats are the real authoritarians. While Republicans may have started this century leading the charge on shredding civil liberties and expanding the national security state, liberals and the Democratic Party have now taken up that torch, while the Right—with its opposition to pandemic mitigation and tech censorship, and its invocations of free speech—are the defenders of core civil rights. This is, at best, half right. It’s true that the Democratic Party has, along with the rest of the US political center, embraced a range of authoritarian moves, from embracing and expanding George W. Bush’s “war on terror” and pushing for tech companies to censor political speech and ban users, to valorizing entities like the CIA and increasing the role of the national security state at home. But are these alarming trends on the liberal side matched by a commitment to protecting civil liberties on the Right? In a word, no. From criminalizing protest, to banning books, concepts, and even words from schools, to using executive power in new, repressive ways—the Right continues to be an extreme and growing authoritarian threat in today’s United States.

Rest assured, dear reader, that you are safely in the hands of a vigilant and freedom-loving civil libertarian who trusts neither the right nor the left nor the center, and certainly not the Jacobins.

Thanks for your contributions. I read every one that you send. By submitting an email, you’ve agreed to let us use it—in part or in full—in the newsletter and on our website. Published feedback may include a writer’s full name, city, and state, unless otherwise requested in your initial note.

Threats to freedom of press: Violence, disinformation & censorship

The free flow of ideas: Freedom of the press, the journalists on the frontline

The way we see the world and act on it depends on the information we have. This is why freedom of expression and freedom of the press are fundamental rights, and the free flow of ideas is a key driver of vibrant societies and human progress. UNESCO works to reinforce the tools, skills and conditions that make these rights real.

Peter R. De Vries was on his way to a car park, walking past crowds of people enjoying post-work drinks in the heart of Amsterdam. It was the early evening of 6 July 2021 and the veteran crime journalist had just left a nearby TV studio, where he had appeared as a talk show guest. 

De Vries was a household name in the Netherlands, where his own TV show had run for 17 years, working with crime victims’ families, pursuing unsolved cases and exposing miscarriages of justice. The journalist had recently refused police protection after receiving death threats. A year earlier, he had agreed to act as an adviser to the key prosecution witness against the suspected head of a cocaine trafficking gang. 

As De Vries walked to his car, several bullets were fired at him. He died from his injuries nine days later. 

Threats and violence against journalists

De Vries’ death prompted outpourings of condemnation and anger in Europe. Yet, many journalists and reporters around the world today risk their lives to uncover the truth. Every four days a journalist is killed in the world. In 2020 alone, according to UNESCO, 62 journalists were killed just for doing their jobs. Between 2006 and 2020, over 1,200 media professionals lost their lives in the same way. In nine out of ten cases, the killers go unpunished.

In many countries investigating corruption, trafficking, human rights violations, and political or environmental issues puts journalists’ lives at risk.

62 journalists killed in 2020,

just for doing their jobs: UNESCO

Crimes against journalists have an enormous impact on society as a whole, because they prevent people from making informed decisions.

To help create the kind of environment journalists need to perform their vital work, UNESCO has set up several initiatives, including a global plan of action for the safety of journalists, in order to support Member States to establish or improve mechanisms for prevention, protection and prosecution to bring justice to cases of murdered journalists. One key aspect of UNESCO’s work is first and foremost to report and publicly condemn all cases of killing of journalists. UNESCO also produces training materials and best practices to help improve journalists’ skills and knowledge on international standards for freedom of expression, investigative journalism and reporting on conflicts.

For the past 40 years, UNESCO’s International Programme for the Development of Communication (IPDC)   has focused on targeting the most pressing issues concerning communication development around the world. It helps keep journalists safe, supports the development of media in countries where it is most needed, promotes freedom of expression and public access to information.

UNESCO's initiatives

Fostering Freedom of Expression

Women journalists facing risks and abuse

Across the world, journalists face countless threats every day, ranging from kidnapping, torture and arbitrary detention to disinformation campaigns and harassment, especially on social media. Women journalists are at particular risk. 

According to UNESCO research, 73 per cent of women journalists surveyed said they had been threatened, intimidated and insulted online in connection with their work. Often, the failure to investigate and address online attacks has real-life consequences for women journalists, affecting their mental and physical health. In some cases, online threats can escalate to physical violence and even murder, as the murder of Maltese journalist Daphne Caruana Galizia in 2017 demonstrated.

#JournalistsToo:

For many years, Caruana Galizia had been the most prominent investigative journalist in Malta. She had worked as a columnist and editor in various newspapers. She later set up the website Running Commentary, where she published some of her most significant investigative journalism, exposing tax abuse and corruption in Malta and abroad. Harassment, threats and attempts to silence the journalist had been a constant presence throughout her career.

Online threats and violence against women journalists are designed to belittle, humiliate and shame them, as well as induce fear, silence and discredit them professionally. To respond to increasing threats against women journalists, UNESCO has published a research paper aimed at associations, politicians and governments: The Chilling . It seeks to promote discussion about effective legislative and organizational initiatives that are designed to protect women journalists.

Training judges and prosecutors to defend press freedom

Caruana Galizia’s biggest fear was that her example of physical threats, online harassments and libel lawsuits might discourage other journalists from speaking out. At the time of her death, Caruana Galizia was facing 48 libel suits. Award-winning journalist and Nobel Peace Prize recipient Maria Ressa also faced several lawsuits before being found guilty of libel in the Philippines in 2020.

What you are seeing is death by a thousand cuts for press freedom and democracy. It joins the messaging that was pushed out on social media that “journalists equal criminals.

Ressa and a former colleague at the news site she founded, Rappler, were convicted of cyber libel by a court in Manila after they published an article linking a businessman to illegal activities. During her career, Ressa has been arrested and has been subject to a sustained campaign of gendered online abuse, threats and harassment, which at one point, resulted in her receiving an average of over 90 hateful messages an hour on Facebook.

Often based on meritless or exaggerated claims, these lawsuits are brought in order to pressure a journalist or human rights defender, rather than to vindicate a right.

That is why judges and prosecutors play an important role in protecting journalists from threats and harassment, as well as promoting prompt and effective criminal proceedings when attacks occur.

When attacks against journalists go unpunished, the legal system and safety frameworks have failed everyone.

In recent years, UNESCO has trained nearly 23,000 judicial officials, including judges, prosecutors and lawyers, through several workshops on media and journalist law, training courses and online webinars, in partnership with universities and educational institutions like the Knight Center for Journalism at the University of Austin, Texas (USA). Training focuses on international standards related to freedom of expression and the safety of journalists, placing a particular focus on issues of impunity. In 2021, UNESCO’s online conference The role of the judiciary and international cooperation to foster safety of journalists – What works? explored effective ways in which judges, prosecutors and lawyers, as well as regional human rights courts and judicial training institutes, can combat impunity for crimes against journalists.

The fight against misinformation and censorship

The threats to freedom of expression and democracy also come from misinformation and censorship. The COVID-19 pandemic and the ensuing pandemic of misinformation have demonstrated that access to facts and science can be a matter of life and death.  In the first three months of 2020, almost 6,000 people around the world were hospitalized because of coronavirus misinformation, according to a paper published in the American Journal of Tropical Medicine and Hygiene . During this period, researchers say at least 800 people may have died due to misinformation related to COVID-19.

In May 2020, at the very beginning of the pandemic, the Knight Center, with the support of UNESCO and the World Health Organization (WHO), launched an online course on how to empower journalists, communication workers and content creators countering the phenomenon of disinformation related to the pandemic. The course attracted nearly 9,000 students from 162 countries. ‘2020 was surely the most important year for the fact-checking community,’ said journalist Cristina Tardáguila, who was the course instructor and has been involved in global initiatives against disinformation as associate director of the International Fact-Checking Network (IFCN).

Journalism in a Pandemic: Covering COVID-19 Now and in the Future is an online self-directed course available in eight languages:  Arabic ,  Chinese ,  English ,  French ,  Hindi ,  Portuguese ,  Russian and  Spanish . 

Journalists covering the rollout of COVID-19 vaccines have received support through a live webinar, Covering the COVID-19 Vaccines: What Journalists Need to Know.  The recording is now available in 13 languages : Arabic, Bambara, Chinese, Dari, English, French, Guarani, Hindi, Pashto, Portuguese, Russian, Spanish and Wolof.

The media can also take an important part in understanding complex issues such as climate change and fighting the misinformation that surrounds it. In the face of climate change, journalists have the ability to enlighten the public and be the link between scientists and citizens by highlighting the urgency of the situation, but also tell stories that are positive and inspire solutions.

Getting the Message Across: Reporting on Climate Change and Sustainable Development in Asia and the Pacific

UNESCO has supported the publication of a handbook for journalists covering climate change. Journalists are key to ensuring that stories of destruction as well as of resistance are shared, in order to get the message across about climate change and avoid misinformation.

The power of community radios

The struggle to protect journalists and promote freedom of expression is just one of the pillars helping build knowledge societies that have the power to transform economies and communities. Universal access to information and knowledge as well as the respect for cultural and linguistic diversity are essential to building peace, sustainable economic development and intercultural dialogue.

The Syrian Hour is a UNESCO-funded project that produces a bi-weekly radio programme, aired on Yarmouk FM radio station in Irbid, northern Jordan, where there is a large Syrian refugee population. 

Syrian Hour

The programme trains young Syrians in radio broadcasting skills to host the shows while the shows themselves provide vital information and support to displaced Syrian refugees residing in Jordan. Majd Al Sammouri is one of the young people being trained to host The Syrian Hour. 

The first paths of my dreams were at the Faculty of Media and Mass Communication at the University of Damascus, a road I thought was lost forever after finding refuge in Jordan. Yarmouk FM was the compass that put me back to the streets of my dreams.

Many Syrian refugees who fled the war to Jordan still lack awareness about their security, liberty and protection rights and what is available to them in terms of food-assistance, education, health or psychosocial support. Often, their precarious refugee status makes them too afraid to approach authorities and humanitarian organizations.

Majd and his young colleagues provide much-needed reliable information and support to the refugee community.

Community radio is a powerful tool because it has the potential to reach out to people with little or no access to information. It is an efficient mechanism for educating and informing people living in remote areas about key issues such as health, education and sustainable development.

UNESCO is supporting and promoting community radios as a means to facilitate social communication and support democratic processes within societies.

Community radios are also being used to promote oral traditions. For example, in Bandafassi, Senegal, the community radio broadcasts stories and proverbs, traditional music and the history of the various villages. This is one of the many small steps towards building pluralistic and diverse media that provide free impartial information options to empower the public to make their choices towards peace, sustainability, poverty eradication and human rights.

UNESCO is supporting and promoting community radios

Fostering freedom of speech.

UNESCO works to foster free, independent and pluralistic media in print, broadcast and online. Media that adhere to this model enhance freedom of speech as well as contribute to peace, sustainability, poverty eradication and human rights.

#TruthNeverDies

#TruthNeverDies is a campaign developed jointly by UNESCO and communication agency DDB Paris to commemorate the  International Day to End Impunity for Crimes against Journalists  on 2 November.

Women Make the News 

Women Make the News is a global initiative aimed at raising awareness on issues relating to gender equality in and through the media, driving debate and encouraging action-oriented solutions to meet global objectives.

#HerMomentsMatter  

#HerMomentsMatter is a continuation of UNESCO’s World Radio Day campaign and aims to promote fairer coverage of women athletes. Women represent just 7 per cent of sportspeople seen, heard or read about in the media, while only 4 per cent of sports stories focus primarily on women. 

Remote Radio Week

Community media, whether broadcast or online, are key to ensuring media pluralism and freedom of expression. They are also an indicator of a healthy democratic society.

In partnership with the World Health Organization (WHO), UNESCO has launched a free online training for radio stations to develop their capacities to broadcast remotely.

AI and Facial Recognition webinar

This webinar about artificial intelligence (AI) and facial recognition, organized by UNESCO, touches on the pressing issues of facial recognition and the concerns it raises about the widespread adoption of AI and human rights. As AI is developing rapidly, it is important to understand its developments, which may have profound and potentially adverse impacts on individuals and society.

Webinar on Artificial Intelligence and Facial Recognition

World atlas of languages.

The World Atlas of Languages is an unprecedented initiative to preserve, revitalize and promote global linguistic diversity and multilingualism as a unique heritage and treasure of humanity. The project aims to stimulate new research and innovation, create demand for new language resources and tools, help support language policy and legislation, and forge new partnerships and collaboration in the global community to open up access to information.  

World Digital Library

Launched in 2009, the World Digital Library is a project of the U.S. Library of Congress, with the support of UNESCO, and contributions from libraries, archives, museums, educational institutions and international organizations around the world. The WDL seeks to preserve and share some of the world’s most important cultural objects, increasing access to cultural treasures and significant historical documents, to enable discovery, scholarship and use.

UNESCO/Guillermo Cano World Press Freedom Prize

Created in 1997, the annual UNESCO/Guillermo Cano World Press Freedom Prize honours an individual, organisation or institution that has made an outstanding contribution to the defence and, or promotion of press freedom anywhere in the world, especially when this has been achieved in the face of danger. It is named after Guillermo Cano Isaza, a Colombian journalist who was assassinated in front of the offices of his newspaper El Espectador in Bogotá, Colombia on 17 December 1986.

UNESCO / Guillermo Cano

World Press Freedom Prize

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Positive and Negative Liberty

Negative liberty is the absence of obstacles, barriers or constraints. One has negative liberty to the extent that actions are available to one in this negative sense. Positive liberty is the possibility of acting — or the fact of acting — in such a way as to take control of one’s life and realize one’s fundamental purposes. While negative liberty is usually attributed to individual agents, positive liberty is sometimes attributed to collectivities, or to individuals considered primarily as members of given collectivities.

The idea of distinguishing between a negative and a positive sense of the term ‘liberty’ goes back at least to Kant, and was examined and defended in depth by Isaiah Berlin in the 1950s and ’60s. Discussions about positive and negative liberty normally take place within the context of political and social philosophy. They are distinct from, though sometimes related to, philosophical discussions about free will . Work on the nature of positive liberty often overlaps, however, with work on the nature of autonomy .

As Berlin showed, negative and positive liberty are not merely two distinct kinds of liberty; they can be seen as rival, incompatible interpretations of a single political ideal. Since few people claim to be against liberty, the way this term is interpreted and defined can have important political implications. Political liberalism tends to presuppose a negative definition of liberty: liberals generally claim that if one favors individual liberty one should place strong limitations on the activities of the state. Critics of liberalism often contest this implication by contesting the negative definition of liberty: they argue that the pursuit of liberty understood as self-realization or as self-determination (whether of the individual or of the collectivity) can require state intervention of a kind not normally allowed by liberals.

Many authors prefer to talk of positive and negative freedom . This is only a difference of style, and the terms ‘liberty’ and ‘freedom’ are normally used interchangeably by political and social philosophers. Although some attempts have been made to distinguish between liberty and freedom (Pitkin 1988; Williams 2001; Dworkin 2011), generally speaking these have not caught on. Neither can they be translated into other European languages, which contain only the one term, of either Latin or Germanic origin (e.g. liberté, Freiheit), where English contains both.

1. Two Concepts of Liberty

2. the paradox of positive liberty, 3.1 positive liberty as content-neutral, 3.2 republican liberty, 4. one concept of liberty: freedom as a triadic relation, 5. the analysis of constraints: their types and their sources, 6. the concept of overall freedom, 7. is the distinction still useful, introductory works, other works, other internet resources, related entries.

Imagine you are driving a car through town, and you come to a fork in the road. You turn left, but no one was forcing you to go one way or the other. Next you come to a crossroads. You turn right, but no one was preventing you from going left or straight on. There is no traffic to speak of and there are no diversions or police roadblocks. So you seem, as a driver, to be completely free. But this picture of your situation might change quite dramatically if we consider that the reason you went left and then right is that you’re addicted to cigarettes and you’re desperate to get to the tobacconists before it closes. Rather than driving , you feel you are being driven , as your urge to smoke leads you uncontrollably to turn the wheel first to the left and then to the right. Moreover, you’re perfectly aware that your turning right at the crossroads means you’ll probably miss a train that was to take you to an appointment you care about very much. You long to be free of this irrational desire that is not only threatening your longevity but is also stopping you right now from doing what you think you ought to be doing.

This story gives us two contrasting ways of thinking of liberty. On the one hand, one can think of liberty as the absence of obstacles external to the agent. You are free if no one is stopping you from doing whatever you might want to do. In the above story you appear, in this sense, to be free. On the other hand, one can think of liberty as the presence of control on the part of the agent. To be free, you must be self-determined, which is to say that you must be able to control your own destiny in your own interests. In the above story you appear, in this sense, to be unfree: you are not in control of your own destiny, as you are failing to control a passion that you yourself would rather be rid of and which is preventing you from realizing what you recognize to be your true interests. One might say that while on the first view liberty is simply about how many doors are open to the agent, on the second view it is more about going through the right doors for the right reasons.

In a famous essay first published in 1958, Isaiah Berlin called these two concepts of liberty negative and positive respectively (Berlin 1969). [ 1 ] The reason for using these labels is that in the first case liberty seems to be a mere absence of something (i.e. of obstacles, barriers, constraints or interference from others), whereas in the second case it seems to require the presence of something (i.e. of control, self-mastery, self-determination or self-realization). In Berlin’s words, we use the negative concept of liberty in attempting to answer the question “What is the area within which the subject — a person or group of persons — is or should be left to do or be what he is able to do or be, without interference by other persons?”, whereas we use the positive concept in attempting to answer the question “What, or who, is the source of control or interference that can determine someone to do, or be, this rather than that?” (1969, pp. 121–22).

It is useful to think of the difference between the two concepts in terms of the difference between factors that are external and factors that are internal to the agent. While theorists of negative freedom are primarily interested in the degree to which individuals or groups suffer interference from external bodies, theorists of positive freedom are more attentive to the internal factors affecting the degree to which individuals or groups act autonomously. Given this difference, one might be tempted to think that a political philosopher should concentrate exclusively on negative freedom, a concern with positive freedom being more relevant to psychology or individual morality than to political and social institutions. This, however, would be premature, for among the most hotly debated issues in political philosophy are the following: Is the positive concept of freedom a political concept? Can individuals or groups achieve positive freedom through political action? Is it possible for the state to promote the positive freedom of citizens on their behalf? And if so, is it desirable for the state to do so? The classic texts in the history of western political thought are divided over how these questions should be answered: theorists in the classical liberal tradition, like Benjamin Constant, Wilhelm von Humboldt, Herbert Spencer, and J.S. Mill, are typically classed as answering ‘no’ and therefore as defending a negative concept of political freedom; theorists that are critical of this tradition, like Jean-Jacques Rousseau, G.W.F. Hegel, Karl Marx and T.H. Green, are typically classed as answering ‘yes’ and as defending a positive concept of political freedom.

In its political form, positive freedom has often been thought of as necessarily achieved through a collectivity. Perhaps the clearest case is that of Rousseau’s theory of freedom, according to which individual freedom is achieved through participation in the process whereby one’s community exercises collective control over its own affairs in accordance with the ‘general will’. Put in the simplest terms, one might say that a democratic society is a free society because it is a self-determined society, and that a member of that society is free to the extent that he or she participates in its democratic process. But there are also individualist applications of the concept of positive freedom. For example, it is sometimes said that a government should aim actively to create the conditions necessary for individuals to be self-sufficient or to achieve self-realization. The welfare state has sometimes been defended on this basis, as has the idea of a universal basic income. The negative concept of freedom, on the other hand, is most commonly assumed in liberal defences of the constitutional liberties typical of liberal-democratic societies, such as freedom of movement, freedom of religion, and freedom of speech, and in arguments against paternalist or moralist state intervention. It is also often invoked in defences of the right to private property. This said, some philosophers have contested the claim that private property necessarily enhances negative liberty (Cohen 1995, 2006), and still others have tried to show that negative liberty can ground a form of egalitarianism (Steiner 1994).

After Berlin, the most widely cited and best developed analyses of the negative concept of liberty include Hayek (1960), Day (1971), Oppenheim (1981), Miller (1983) and Steiner (1994). Among the most prominent contemporary analyses of the positive concept of liberty are Milne (1968), Gibbs (1976), C. Taylor (1979) and Christman (1991, 2005).

Many liberals, including Berlin, have suggested that the positive concept of liberty carries with it a danger of authoritarianism. Consider the fate of a permanent and oppressed minority. Because the members of this minority participate in a democratic process characterized by majority rule, they might be said to be free on the grounds that they are members of a society exercising self-control over its own affairs. But they are oppressed, and so are surely unfree. Moreover, it is not necessary to see a society as democratic in order to see it as self-controlled; one might instead adopt an organic conception of society, according to which the collectivity is to be thought of as a living organism, and one might believe that this organism will only act rationally, will only be in control of itself, when its various parts are brought into line with some rational plan devised by its wise governors (who, to extend the metaphor, might be thought of as the organism’s brain). In this case, even the majority might be oppressed in the name of liberty.

Such justifications of oppression in the name of liberty are no mere products of the liberal imagination, for there are notorious historical examples of their endorsement by authoritarian political leaders. Berlin, himself a liberal and writing during the cold war, was clearly moved by the way in which the apparently noble ideal of freedom as self-mastery or self-realization had been twisted and distorted by the totalitarian dictators of the twentieth century — most notably those of the Soviet Union — so as to claim that they, rather than the liberal West, were the true champions of freedom. The slippery slope towards this paradoxical conclusion begins, according to Berlin, with the idea of a divided self. To illustrate: the smoker in our story provides a clear example of a divided self, for she is both a self that desires to get to an appointment and a self that desires to get to the tobacconists, and these two desires are in conflict. We can now enrich this story in a plausible way by adding that one of these selves — the keeper of appointments — is superior to the other: the self that is a keeper of appointments is thus a ‘higher’ self, and the self that is a smoker is a ‘lower’ self. The higher self is the rational, reflecting self, the self that is capable of moral action and of taking responsibility for what she does. This is the true self, for rational reflection and moral responsibility are the features of humans that mark them off from other animals. The lower self, on the other hand, is the self of the passions, of unreflecting desires and irrational impulses. One is free, then, when one’s higher, rational self is in control and one is not a slave to one’s passions or to one’s merely empirical self. The next step down the slippery slope consists in pointing out that some individuals are more rational than others, and can therefore know best what is in their and others’ rational interests. This allows them to say that by forcing people less rational than themselves to do the rational thing and thus to realize their true selves, they are in fact liberating them from their merely empirical desires. Occasionally, Berlin says, the defender of positive freedom will take an additional step that consists in conceiving of the self as wider than the individual and as represented by an organic social whole — “a tribe, a race, a church, a state, the great society of the living and the dead and the yet unborn”. The true interests of the individual are to be identified with the interests of this whole, and individuals can and should be coerced into fulfilling these interests, for they would not resist coercion if they were as rational and wise as their coercers. “Once I take this view”, Berlin says, “I am in a position to ignore the actual wishes of men or societies, to bully, oppress, torture in the name, and on behalf, of their ‘real’ selves, in the secure knowledge that whatever is the true goal of man ... must be identical with his freedom” (Berlin 1969, pp. 132–33).

Those in the negative camp try to cut off this line of reasoning at the first step, by denying that there is any necessary relation between one’s freedom and one’s desires. Since one is free to the extent that one is externally unprevented from doing things, they say, one can be free to do what one does not desire to do. If being free meant being unprevented from realizing one’s desires, then one could, again paradoxically, reduce one’s unfreedom by coming to desire fewer of the things one is unfree to do. One could become free simply by contenting oneself with one’s situation. A perfectly contented slave is perfectly free to realize all of her desires. Nevertheless, we tend to think of slavery as the opposite of freedom. More generally, freedom is not to be confused with happiness, for in logical terms there is nothing to stop a free person from being unhappy or an unfree person from being happy. The happy person might feel free, but whether they are free is another matter (Day, 1970). Negative theorists of freedom therefore tend to say not that having freedom means being unprevented from doing as one desires, but that it means being unprevented from doing whatever one might desire to do (Steiner 1994. Cf. Van Parijs 1995; Sugden 2006).

Some theorists of positive freedom bite the bullet and say that the contented slave is indeed free — that in order to be free the individual must learn, not so much to dominate certain merely empirical desires, but to rid herself of them. She must, in other words, remove as many of her desires as possible. As Berlin puts it, if I have a wounded leg ‘there are two methods of freeing myself from pain. One is to heal the wound. But if the cure is too difficult or uncertain, there is another method. I can get rid of the wound by cutting off my leg’ (1969, pp. 135–36). This is the strategy of liberation adopted by ascetics, stoics and Buddhist sages. It involves a ‘retreat into an inner citadel’ — a soul or a purely noumenal self — in which the individual is immune to any outside forces. But this state, even if it can be achieved, is not one that liberals would want to call one of freedom, for it again risks masking important forms of oppression. It is, after all, often in coming to terms with excessive external limitations in society that individuals retreat into themselves, pretending to themselves that they do not really desire the worldly goods or pleasures they have been denied. Moreover, the removal of desires may also be an effect of outside forces, such as brainwashing, which we should hardly want to call a realization of freedom.

Because the concept of negative freedom concentrates on the external sphere in which individuals interact, it seems to provide a better guarantee against the dangers of paternalism and authoritarianism perceived by Berlin. To promote negative freedom is to promote the existence of a sphere of action within which the individual is sovereign, and within which she can pursue her own projects subject only to the constraint that she respect the spheres of others. Humboldt and Mill, both advocates of negative freedom, compared the development of an individual to that of a plant: individuals, like plants, must be allowed to grow, in the sense of developing their own faculties to the full and according to their own inner logic. Personal growth is something that cannot be imposed from without, but must come from within the individual.

3. Two Attempts to Create a Third Way

Critics, however, have objected that the ideal described by Humboldt and Mill looks much more like a positive concept of liberty than a negative one. Positive liberty consists, they say, in exactly this growth of the individual: the free individual is one that develops, determines and changes her own desires and interests autonomously and from within. This is not liberty as the mere absence of obstacles, but liberty as autonomy or self-realization. Why should the mere absence of state interference be thought to guarantee such growth? Is there not some third way between the extremes of totalitarianism and the minimal state of the classical liberals — some non-paternalist, non-authoritarian means by which positive liberty in the above sense can be actively promoted?

Much of the more recent work on positive liberty has been motivated by a dissatisfaction with the ideal of negative liberty combined with an awareness of the possible abuses of the positive concept so forcefully exposed by Berlin. John Christman (1991, 2005, 2009, 2013), for example, has argued that positive liberty concerns the ways in which desires are formed — whether as a result of rational reflection on all the options available, or as a result of pressure, manipulation or ignorance. What it does not regard, he says, is the content of an individual’s desires. The promotion of positive freedom need not therefore involve the claim that there is only one right answer to the question of how a person should live, nor need it allow, or even be compatible with, a society forcing its members into given patterns of behavior. Take the example of a Muslim woman who claims to espouse the fundamentalist doctrines generally followed by her family and the community in which she lives. On Christman’s account, this person is positively unfree if her desire to conform was somehow oppressively imposed upon her through indoctrination, manipulation or deceit. She is positively free, on the other hand, if she arrived at her desire to conform while aware of other reasonable options and she weighed and assessed these other options rationally. Even if this woman seems to have a preference for subservient behavior, there is nothing necessarily freedom-enhancing or freedom-restricting about her having the desires she has, since freedom regards not the content of these desires but their mode of formation. On this view, forcing her to do certain things rather than others can never make her more free, and Berlin’s paradox of positive freedom would seem to have been avoided.

This more ‘procedural’ account of positive liberty allows us to point to kinds of internal constraint that seem too fall off the radar if we adopt only negative concept. For example, some radical political theorists believe it can help us to make sense of forms of oppression and structural injustice that cannot be traced to overt acts of prevention or coercion. On the one hand, in agreement with Berlin, we should recognize the dangers of that come with promoting the values or interests of a person’s ‘true self’ in opposition to what they manifestly desire. Thus, the procedural account avoids all reference to a ‘true self’. On the other, we should recognize that people’s actual selves are inevitably formed in a social context and that their values and senses of identity (for example, in terms of gender or race or nationality) are shaped by cultural influences. In this sense, the self is ‘socially constructed’, and this social construction can itself occur in oppressive ways. The challenge, then, is to show how a person’s values can be thus shaped but without the kind of oppressive imposition or manipulation that comes not only from political coercion but also, more subtly, from practices or institutions that stigmatize or marginalize certain identities or that attach costs to the endorsement of values deviating from acceptable norms, for these kinds of imposition or manipulation can be just another way of promoting a substantive ideal of the self. And this was exactly the danger against which Berlin was warning, except that the danger is less visible and can be created unintentionally (Christman 2013, 2015, 2021; Hirschmann 2003, 2013; Coole 2013).

While this theory of positive freedom undoubtedly provides a tool for criticizing the limiting effects of certain practices and institutions in contemporary liberal societies, it remains to be seen what kinds of political action can be pursued in order to promote content-neutral positive liberty without encroaching on any individual’s rightful sphere of negative liberty. Thus, the potential conflict between the two ideals of negative and positive freedom might survive Christman’s alternative analysis, albeit in a milder form. Even if we rule out coercing individuals into specific patterns of behavior, a state interested in promoting content-neutral positive liberty might still have considerable space for intervention aimed at ‘public enlightenment’, perhaps subsidizing some kinds of activities (in order to encourage a plurality of genuine options) and financing such intervention through taxation. Liberals might criticize this kind of intervention on anti-paternalist grounds, objecting that such measures will require the state to use resources in ways that the supposedly heteronomous individuals, if left to themselves, might have chosen to spend in other ways. In other words, even in its content-neutral form, the ideal of positive freedom might still conflict with the liberal idea of respect for persons, one interpretation of which involves viewing individuals from the outside and taking their choices at face value. From a liberal point of view, the blindness to internal constraints can be intentional (Carter 2011a). Some liberals will make an exception to this restriction on state intervention in the case of the education of children, in such a way as to provide for the active cultivation of open minds and rational reflection. Even here, however, other liberals will object that the right to negative liberty includes the right to decide how one’s children should be educated.

Is it necessary to refer to internal constraints in order to make sense of the phenomena of oppression and structural injustice? Some might contest this view, or say that it is true only up to a point, for there are at least two reasons for thinking that the oppressed are lacking in negative liberty. First, while Berlin himself equated economic and social disadvantages with natural disabilities, claiming that neither represented constraints on negative liberty but only on personal abilities, many theorists of negative liberty disagree: if I lack the money to buy a jacket from a clothes shop, then any attempt on my part to carry away the jacket is likely to meet with preventive actions or punishment on the part of the shop keeper or the agents of the state. This is a case of interpersonal interference, not merely of personal inability. In the normal circumstances of a market economy, purchasing power is indeed a very reliable indicator of how far other people will stop you from doing certain things if you try. It is therefore strongly correlated with degrees of negative freedom (Cohen 1995, 2011; Waldron 1993; Carter 2007; Grant 2013). Thus, while the promotion of content-neutral positive liberty might imply the transfer of certain kinds of resources to members of disadvantaged groups, the same might be true of the promotion of negative liberty. Second, the negative concept of freedom can be applied directly to disadvantaged groups as well as to their individual members. Some social structures may be such as to tolerate the liberation of only a limited number of members of a given group. G.A. Cohen famously focused on the case proletarians who can escape their condition by successfully setting up a business of their own though a mixture of hard work and luck. In such cases, while each individual member of the disadvantaged group might be negatively free in the sense of being unprevented from choosing the path of liberation, the freedom of the individual is conditional on the unfreedom of the majority of the rest of the group, since not all can escape in this way. Each individual member of the class therefore partakes in a form of collective negative unfreedom (Cohen 1988, 2006; for discussion see Mason 1996; Hindricks 2008; Grant 2013; Schmidt 2020).

Another increasingly influential group of philosophers has rejected both the negative and the positive conception, claiming that liberty is not merely the enjoyment of a sphere of non-interference but the enjoyment of certain conditions in which such non-interference is guaranteed (Pettit 1997, 2001, 2014; Skinner 1998, 2002; Weinstock and Nadeau 2004; Laborde and Maynor 2008; Lovett 2010, forthcoming; Breen and McBride 2015, List and Valentini 2016). These conditions may include the presence of a democratic constitution and a series of safeguards against a government wielding power arbitrarily, including popular control and the separation of powers. As Berlin admits, on the negative view, I am free even if I live in a dictatorship just as long as the dictator happens, on a whim, not to interfere with me (see also Hayek 1960). There is no necessary connection between negative liberty and any particular form of government. Is it not counterintuitive to say that I can in theory be free even if I live in a dictatorship, or that a slave can enjoy considerable liberty as long as the slave-owner is compassionate and generous? Would my subjection to the arbitrary power of a dictator or slave-owner not itself be sufficient to qualify me as unfree? If it would be, then we should say that I am free only if I live in a society with the kinds of political institutions that guarantee the independence of each citizen from such arbitrary power. Quentin Skinner has called this view of freedom ‘neo-Roman’, invoking ideas about freedom both of the ancient Romans and of a number of Renaissance and early modern writers. Philip Pettit has called the same view ‘republican’, and this label has generally prevailed in the recent literature.

Republican freedom can be thought of as a kind of status : to be a free person is to enjoy the rights and privileges attached to the status of republican citizenship, whereas the paradigm of the unfree person is the slave. Freedom is not simply a matter of non-interference, for a slave may enjoy a great deal of non-interference at the whim of her master. What makes her unfree is her status, such that she is permanently exposed to interference of any kind. Even if the slave enjoys non-interference, she is, as Pettit puts it, ‘dominated’, because she is permanently subject to the arbitrary power of her owner.

According to Pettit, then, republicans conceive of freedom not as non-interference, as on the standard negative view, but as ‘non-domination’. Non-domination is distinct from negative freedom, he says, for two reasons. First, as we have seen, one can enjoy non-interference without enjoying non-domination. Second, one can enjoy non-domination while nevertheless being interfered with, just as long as the interference in question is constrained to track one’s avowed interests thanks to republican power structures: only arbitrary power is inimical to freedom, not power as such.

On the other hand, republican freedom is also distinct from positive freedom as expounded and criticized by Berlin. First, republican freedom does not consist in the activity of virtuous political participation; rather, that participation is seen as instrumentally related to freedom as non-domination. Secondly, the republican concept of freedom cannot lead to anything like the oppressive consequences feared by Berlin, because it has a commitment to non-domination and to liberal-democratic institutions already built into it.

Pettit’s idea of freedom as non domination has caught the imagination of a great many political theorists over the last two decades. One source of its popularity lies in the fact that it seems to make sense of the phenomena of oppression and structural injustice referred to above, but without necessarily relying on references to internal constraints. It has been applied not only to relations of domination between governments and citizens, but also to relations of domination between employers and workers (Breen and McBride 2015), between husbands and wives (Lovett forthcoming), and between able-bodied and disabled people (De Wispelaere and Casassas 2014).

It remains to be seen, however, whether the republican concept of freedom is ultimately distinguishable from the negative concept, or whether republican writers on freedom have not simply provided good arguments to the effect that negative freedom is best promoted, on balance and over time , through certain kinds of political institutions rather than others. While there is no necessary connection between negative liberty and democratic government, there may nevertheless be a strong empirical correlation between the two. Ian Carter (1999, 2008), Matthew H. Kramer (2003, 2008), and Robert Goodin and Frank Jackson (2007) have argued, along these lines, that republican policies are best defended empirically on the basis of the standard negative ideal of freedom, rather than on the basis of a conceptual challenge to that ideal. An important premise in such an argument is that the extent of a person’s negative freedom is a function not simply of how many single actions are prevented, but of how many different act-combinations are prevented. On this basis, people who can achieve their goals only by bowing and scraping to their masters must be seen as less free, negatively, than people who can achieve those goals unconditionally. Another important premise is that the extent to which people are negatively free depends, in part, on the probability with which they will be constrained from performing future acts or act-combinations. People who are subject to arbitrary power can be seen as less free in the negative sense even if they do not actually suffer interference, because the probability of their suffering constraints is always greater ( ceteris paribus , as a matter of empirical fact) than it would be if they were not subject to that arbitrary power. Only this greater probability, they say, can adequately explain republican references to the ‘fear’, the ‘sense of exposure’, and the ‘precariousness’ of the dominated (for further discussion see Bruin 2009, Lang 2012, Shnayderman 2012, Kirby 2016, Carter and Shnayderman 2019).

In reply to the above point about the relevance of probabilities, republicans have insisted that freedom as non-domination is nevertheless distinct from negative liberty because what matters for an agent’s freedom is the impossibility of others interfering, not the mere improbability of their doing so. Consider the example of gender relations with the context of marriage. A husband might be kind and generous, or indeed have a strong sense of egalitarian justice, and therefore be extremely unlikely ever to deny his wife the same opportunities as he himself enjoys; but the wife is still dominated if the structure of norms in her society is such as to permit husbands to frustrate the choices of their wives in numerous ways. If she lives in such a society, she is still subject to the husband’s power whether he likes it or not. And whether the husband likes it or not, the wife’s subjection to his power will tend to influence how third parties treat her – for example, in terms of offering employment opportunities.

Taken at face value, however, the requirement of impossibility of interference seems over demanding, as it is never completely impossible for others to constrain me. It is not impossible that I be stabbed by someone as I walk down the street this afternoon. Indeed, the possible world in which this event occurs is very close to the actual world, even if the event is improbable in the actual world. If the mere possibility of the stabbing makes me unfree to walk down the street, then unfreedom is everywhere and the achievement of freedom is itself virtually impossible. To avoid this worry, republicans have qualified their impossibility requirement: for me to be free to walk down the street, it must be impossible for others to stab me with impunity (Pettit 2008a, 2008b; Skinner 2008). This qualification makes the impossibility requirement more realistic. Nevertheless, the qualification is open to objections. Is ‘impunity’ a purely formal requirement, or should we say that no one can carry out a street stabbing with impunity if, say, at least 70% of such stabbings lead to prosecution? Even if 100% of such stabbings lead to prosecution, there will still be some stabbings. Will they not be sources of unfreedom for the victims?

More recently some republicans have sidelined the notion of impunity of interference in favour of that of ‘ignorability’ of interference (Ingham and Lovett 2019). I am free to make certain choices if the structure of effective societal norms, whether legal or customary, is such as to constrain the ability of anyone else to frustrate those choices, to the point where the possibility of such frustration, despite existing, is remote enough to be something I can ignore. Once I can ignore that possibility, then the structure of effective norms makes me safe by removing any sense of exposure to interference. Defenders of the negative concept of liberty might respond to this move by saying that the criterion of ignorability looks very much like a criterion of trivially low probability: we consider ourselves free to do x to the extent that the system of enforced norms deters others’ prevention of x in such a way as to make that prevention improbable.

The jury is still out on whether republicans have successfully carved out a third concept of freedom that is really distinct from those of negative and positive liberty. This conceptual uncertainty need not itself cast doubt on the distinctness and attractiveness of republicanism as a set of political prescriptions. Rather, what it leaves open is the question of the ultimate normative bases of those prescriptions: is ‘non-domination’ something that supervenes on certain configurations of negative freedom and unfreedom, and therefore explainable in terms of such configurations, or is it something truly distinct from those configurations?

The two sides identified by Berlin disagree over which of two different concepts best captures the political ideal of ‘liberty’. Does this fact not denote the presence of some more basic agreement between the two sides? How, after all, could they see their disagreement as one about the nature of liberty if they did not think of themselves as in some sense talking about the same thing ? In an influential article, the American legal philosopher Gerald MacCallum (1967) put forward the following answer: there is in fact only one basic concept of freedom, on which both sides in the debate converge . What the so-called negative and positive theorists disagree about is how this single concept of freedom should be interpreted. Indeed, in MacCallum’s view, there are a great many different possible interpretations of freedom, and it is only Berlin’s artificial dichotomy that has led us to think in terms of there being two.

MacCallum defines the basic concept of freedom — the concept on which everyone agrees — as follows: a subject, or agent, is free from certain constraints, or preventing conditions, to do or become certain things. Freedom is therefore a triadic relation — that is, a relation between three things : an agent, certain preventing conditions, and certain doings or becomings of the agent. Any statement about freedom or unfreedom can be translated into a statement of the above form by specifying what is free or unfree, from what it is free or unfree, and what it is free or unfree to do or become . Any claim about the presence or absence of freedom in a given situation will therefore make certain assumptions about what counts as an agent, what counts as a constraint or limitation on freedom, and what counts as a purpose that the agent can be described as either free or unfree to carry out.

The definition of freedom as a triadic relation was first put forward in the seminal work of Felix Oppenheim in the 1950s and 60s. Oppenheim saw that an important meaning of ‘freedom’ in the context of political and social philosophy was as a relation between two agents and a particular (impeded or unimpeded) action. However, Oppenheim’s interpretation of freedom was an example of what Berlin would call a negative concept. What MacCallum did was to generalize this triadic structure so that it would cover all possible claims about freedom, whether of the negative or the positive variety. In MacCallum’s framework, unlike in Oppenheim’s, the interpretation of each of the three variables is left open. In other words, MacCallum’s position is a meta-theoretical one: his is a theory about the differences between theorists of freedom.

To illustrate MacCallum’s point, let us return to the example of the smoker driving to the tobacconists. In describing this person as either free or unfree, we shall be making assumptions about each of MacCallum’s three variables. If we say that the driver is free , what we shall probably mean is that an agent, consisting in the driver’s empirical self, is free from external (physical or legal) obstacles to do whatever he or she might want to do. If, on the other hand, we say that the driver is unfree , what we shall probably mean is that an agent, consisting in a higher or rational self, is made unfree by internal, psychological constraints to carry out some rational, authentic or virtuous plan. Notice that in both claims there is a negative element and a positive element: each claim about freedom assumes both that freedom is freedom from something (i.e., preventing conditions) and that it is freedom to do or become something. The dichotomy between ‘freedom from’ and ‘freedom to’ is therefore a false one, and it is misleading to say that those who see the driver as free employ a negative concept and those who see the driver as unfree employ a positive one. What these two camps differ over is the way in which one should interpret each of the three variables in the triadic freedom-relation. More precisely, we can see that what they differ over is the extension to be assigned to each of the variables.

Thus, those whom Berlin places in the negative camp typically conceive of the agent as having the same extension as that which it is generally given in ordinary discourse: they tend to think of the agent as an individual human being and as including all of the empirical beliefs and desires of that individual. Those in the so-called positive camp, on the other hand, often depart from the ordinary notion, in one sense imagining the agent as more extensive than in the ordinary notion, and in another sense imagining it as less extensive: they think of the agent as having a greater extension than in ordinary discourse in cases where they identify the agent’s true desires and aims with those of some collectivity of which she is a member; and they think of the agent as having a lesser extension than in ordinary discourse in cases where they identify the true agent with only a subset of her empirical beliefs and desires — i.e., with those that are rational, authentic or virtuous. Secondly, those in Berlin’s positive camp tend to take a wider view of what counts as a constraint on freedom than those in his negative camp: the set of relevant obstacles is more extensive for the former than for the latter, since negative theorists tend to count only external obstacles as constraints on freedom, whereas positive theorists also allow that one may be constrained by internal factors, such as irrational desires, fears or ignorance. And thirdly, those in Berlin’s positive camp tend to take a narrower view of what counts as a purpose one can be free to fulfill. The set of relevant purposes is less extensive for them than for the negative theorists, for we have seen that they tend to restrict the relevant set of actions or states to those that are rational, authentic or virtuous, whereas those in the negative camp tend to extend this variable so as to cover any action or state the agent might desire.

On MacCallum’s analysis, then, there is no simple dichotomy between positive and negative liberty; rather, we should recognize that there is a whole range of possible interpretations or ‘conceptions’ of the single concept of liberty. Indeed, as MacCallum says and as Berlin seems implicitly to admit, a number of classic authors cannot be placed unequivocally in one or the other of the two camps. Locke, for example, is normally thought of as one of the fathers or classical liberalism and therefore as a staunch defender of the negative concept of freedom. He indeed states explicitly that ‘[to be at] liberty is to be free from restraint and violence from others’. But he also says that liberty is not to be confused with ‘license’, and that “that ill deserves the name of confinement which hedges us in only from bogs and precipices” ( Second Treatise , parags. 6 and 57). While Locke gives an account of constraints on freedom that Berlin would call negative, he seems to endorse an account of MacCallum’s third freedom-variable that Berlin would call positive, restricting this variable to actions that are not immoral (liberty is not license) and to those that are in the agent’s own interests (I am not unfree if prevented from falling into a bog). A number of contemporary liberals or libertarians have provided or assumed definitions of freedom that are similarly morally loaded (e.g. Nozick 1974; Rothbard 1982; Bader 2018). This would seem to confirm MacCallum’s claim that it is conceptually and historically misleading to divide theorists into two camps — a negative liberal one and a positive non-liberal one.

To illustrate the range of interpretations of the concept of freedom made available by MacCallum’s analysis, let us now take a closer look at his second variable — that of constraints on freedom.

Advocates of negative conceptions of freedom typically restrict the range of obstacles that count as constraints on freedom to those that are brought about by other agents. For theorists who conceive of constraints on freedom in this way, I am unfree only to the extent that other people prevent me from doing certain things. If I am incapacitated by natural causes — by a genetic handicap, say, or by a virus or by certain climatic conditions — I may be rendered unable to do certain things, but I am not, for that reason, rendered unfree to do them. Thus, if you lock me in my house, I shall be both unable and unfree to leave. But if I am unable to leave because I suffer from a debilitating illness or because a snow drift has blocked my exit, I am nevertheless not unfree, to leave. The reason such theorists give, for restricting the set of relevant preventing conditions in this way, is that they see unfreedom as a social relation — a relation between persons (see Oppenheim 1961; Miller 1983; Steiner 1983; Kristjánsson 1996; Kramer 2003; Morriss 2012; Shnayderman 2013; Schmidt 2016). Unfreedom as mere inability is thought by such authors to be more the concern of engineers and medics than of political and social philosophers. (If I suffer from a natural or self-inflicted inability to do something, should we to say that I remain free to do it, or should we say that the inability removes my freedom to do it while nevertheless not implying that I am un free to do it? In the latter case, we shall be endorsing a ‘trivalent’ conception, according to which there are some things that a person is neither free nor unfree to do. Kramer 2003 endorses a trivalent conception according to which freedom is identified with ability and unfreedom is the prevention (by others) of outcomes that the agent would otherwise be able to bring about.)

In attempting to distinguish between natural and social obstacles we shall inevitably come across gray areas. An important example is that of obstacles created by impersonal economic forces. Do economic constraints like recession, poverty and unemployment merely incapacitate people, or do they also render them unfree? Libertarians and egalitarians have provided contrasting answers to this question by appealing to different conceptions of constraints. Thus, one way of answering the question is by taking an even more restrictive view of what counts as a constraint on freedom, so that only a subset of the set of obstacles brought about by other persons counts as a restriction of freedom: those brought about intentionally . In this case, impersonal economic forces, being brought about unintentionally, do not restrict people’s freedom , even though they undoubtedly make many people unable to do many things. This last view has been taken by a number of market-oriented libertarians, including, most famously, Friedrich von Hayek (1960, 1982), according to whom freedom is the absence of coercion, where to be coerced is to be subject to the arbitrary will of another. (Notice the somewhat surprising similarity between this conception of freedom and the republican conception discussed earlier, in section 3.2) Critics of libertarianism, on the other hand, typically endorse a broader conception of constraints on freedom that includes not only intentionally imposed obstacles but also unintended obstacles for which someone may nevertheless be held responsible (for Miller and Kristjánsson and Shnayderman this means morally responsible; for Oppenheim and Kramer it means causally responsible), or indeed obstacles created in any way whatsoever, so that unfreedom comes to be identical to inability (see Crocker 1980; Cohen 2011, pp. 193–97; Sen 1992; Van Parijs 1995; Garnett forthcoming).

This analysis of constraints helps to explain why socialists and egalitarians have tended to claim that the poor in a capitalist society are as such unfree, or that they are less free than the rich, whereas libertarians have tended to claim that the poor in a capitalist society are no less free than the rich. Egalitarians typically (though do not always) assume a broader notion than libertarians of what counts as a constraint on freedom. Although this view does not necessarily imply what Berlin would call a positive notion of freedom, egalitarians often call their own definition a positive one, in order to convey the sense that freedom requires not merely the absence of certain social relations of prevention but the presence of abilities, or what Amartya Sen has influentially called ‘capabilities’ (Sen 1985, 1988, 1992; Nussbaum 2006, 2011). (Important exceptions to this egalitarian tendency to broaden the relevant set of constraints include those who consider poverty to indicate a lack of social freedom (see sec. 3.1, above). Steiner (1994), grounds a left-libertarian theory of justice in the idea of an equal distribution of social freedom, which he takes to imply an equal distribution of resources.)

We have seen that advocates of a negative conception of freedom tend to count only obstacles that are external to the agent. Notice, however, that the term ‘external’ is ambiguous in this context, for it might be taken to refer either to the location of the causal source of an obstacle or to the location of the obstacle itself. Obstacles that count as ‘internal’ in terms of their own location include psychological phenomena such as ignorance, irrational desires, illusions and phobias. Such constraints can be caused in various ways: for example, they might have a genetic origin, or they might be brought about intentionally by others, as in the case of brainwashing or manipulation. In the first case we have an internal constraint brought about by natural causes, and in this sense ‘internally’; in the second, an internal constraint intentionally imposed by another human agent, and in this sense ‘externally’.

More generally, we can now see that there are in fact two different dimensions along which one’s notion of a constraint might be broader or narrower. A first dimension is that of the source of a constraint — in other words, what it is that brings about a constraint on freedom. We have seen, for example, that some theorists include as constraints on freedom only obstacles brought about by human action, whereas others also include obstacles with a natural origin. A second dimension is that of the type of constraint involved, where constraint-types include the types of internal constraint just mentioned, but also various types of constraint located outside the agent, such as physical barriers that render an action impossible, obstacles that render the performance of an action more or less difficult, and costs attached to the performance of a (more or less difficult) action. The two dimensions of type and source are logically independent of one another. Given this independence, it is theoretically possible to combine a narrow view of what counts as a source of a constraint with a broad view of what types of obstacle count as unfreedom-generating constraints, or vice versa . As a result, it is not clear that theorists who are normally placed in the ‘negative’ camp need deny the existence of internal constraints on freedom (see Kramer 2003; Garnett 2007).

To illustrate the independence of the two dimensions of type and source, consider the case of the unorthodox libertarian Hillel Steiner (1974–5, 1994). On the one hand, Steiner has a much broader view than Hayek of the possible sources of constraints on freedom: he does not limit the set of such sources to intentional human actions, but extends it to cover all kinds of human cause, whether or not any humans intend such causes and whether or not they can be held morally accountable for them, believing that any restriction of such non-natural sources can only be an arbitrary stipulation, usually arising from some more or less conscious ideological bias. On the other hand, Steiner has an even narrower view than Hayek about what type of obstacle counts as a constraint on freedom: for Steiner, an agent only counts as unfree to do something if it is physically impossible for her to do that thing. Any extension of the constraint variable to include other types of obstacle, such as the costs anticipated in coercive threats, would, in his view, necessarily involve a reference to the agent’s desires, and we have seen (in sec. 2) that for those liberals in the negative camp there is no necessary relation between an agent’s freedom and her desires. Consider the coercive threat ‘Your money or your life!’. This does not make it impossible for you to refuse to hand over your money, only much less desirable for you to do so. If you decide not to hand over the money, you will suffer the cost of being killed. That will count as a restriction of your freedom, because it will render physically impossible a great number of actions on your part. But it is not the issuing of the threat that creates this unfreedom, and you are not unfree until the sanction (described in the threat) is carried out. For this reason, Steiner excludes threats — and with them all other kinds of imposed costs — from the set of obstacles that count as freedom-restricting. This conception of freedom derives from Hobbes ( Leviathan , chs. 14 and 21), and its defenders often call it the ‘pure’ negative conception (M. Taylor 1982; Steiner 1994; Carter and Kramer 2008) to distinguish it from those ‘impure’ negative conceptions that make at least minimal references to the agent’s beliefs, desires or values.

Steiner’s account of the relation between freedom and coercive threats might be thought to have counterintuitive implications, even from the liberal point of view. Many laws that are normally thought to restrict negative freedom do not physically prevent people from doing what is prohibited, but deter them from doing so by threatening punishment. Are we to say, then, that these laws do not restrict the negative freedom of those who obey them? A solution to this problem may consist in saying that although a law against doing some action, x , does not remove the freedom to do x , it nevertheless renders physically impossible certain combinations of actions that include doing x and doing what would be precluded by the punishment. There is a restriction of the person’s overall negative freedom — i.e. a reduction in the overall number of act-combinations available to her — even though she does not lose the freedom to do any specific thing taken in isolation (Carter 1999).

The concept of overall freedom appears to play an important role both in everyday discourse and in contemporary political philosophy. It is only recently, however, that philosophers have stopped concentrating exclusively on the meaning of a particular freedom — the freedom to do or become this or that particular thing — and have started asking whether we can also make sense of descriptive claims to the effect that one person or society is freer than another, or of liberal normative claims to the effect that freedom should be maximized or that people should enjoy equal freedom or that they each have a right to a certain minimum level of freedom. The literal meaningfulness of such claims depends on the possibility of gauging degrees of overall freedom, sometimes comparatively, sometimes absolutely.

Theorists disagree, however, about the importance of the notion of overall freedom. For some libertarian and liberal egalitarian theorists, freedom is valuable as such. This suggests that more freedom is better than less (at least ceteris paribus ), and that freedom is one of those goods that a liberal society ought to distribute in a certain way among individuals. For other liberal theorists, like Ronald Dworkin (1977, 2011) and the later Rawls (1991), freedom is not valuable as such, and all claims about maximal or equal freedom ought to be interpreted not as literal references to a scalar good called ‘liberty’ but as elliptical references to the adequacy of lists of certain particular liberties, or types of liberties, selected on the basis of values other than liberty itself. Generally speaking, only the first group of theorists finds the notion of overall freedom interesting.

The theoretical problems involved in measuring overall freedom include that of how an agent’s available actions are to be individuated, counted and weighted, and that of comparing and weighting different types (but not necessarily different sources) of constraints on freedom (such as physical prevention, punishability, threats and manipulation). How are we to make sense of the claim that the number of options available to a person has increased? Should all options count for the same in terms of degrees of freedom, or should they be weighted according to their importance in terms of other values? If the latter, does the notion of overall freedom really add anything of substance to the idea that people should be granted those specific freedoms that are valuable? Should the degree of variety among options also count? And how are we to compare the unfreedom created by the physical impossibility of an action with, say, the unfreedom created by the difficulty or costliness or punishability of an action? It is only by comparing these different kinds of actions and constraints that we shall be in a position to compare individuals’ overall degrees of freedom. These problems have been addressed, with differing degrees of optimism, not only by political philosophers (Steiner 1983; Carter 1999; Kramer 2003; Garnett 2016; Côté 2020; Carter and Steiner 2021) but also by social choice theorists interested in finding a freedom-based alternative to the standard utilitarian or ‘welfarist’ framework that has tended to dominate their discipline (e.g. Pattanaik and Xu 1991, 1998; Hees 2000; Sen 2002; Sugden 1998, 2003, 2006; Bavetta 2004; Bavetta and Navarra 2012, 2014).

MacCallum’s framework is particularly well suited to the clarification of such issues. For this reason, theorists working on the measurement of freedom tend not to refer a great deal to the distinction between positive and negative freedom. This said, most of them are concerned with freedom understood as the availability of options. And the notion of freedom as the availability of options is unequivocally negative in Berlin’s sense at least where two conditions are met: first, the source of unfreedom is limited to the actions of other agents, so that natural or self-inflicted obstacles are not seen as decreasing an agent’s freedom; second, the actions one is free or unfree to perform are weighted in some value-neutral way, so that one is not seen as freer simply because the options available to one are more valuable or conducive to one’s self-realization. Of the above-mentioned authors, only Steiner embraces both conditions explicitly. Sen rejects both of them, despite not endorsing anything like positive freedom in Berlin’s sense.

We began with a simple distinction between two concepts of liberty, and have progressed from this to the recognition that liberty might be defined in any number of ways, depending on how one interprets the three variables of agent, constraints, and purposes. Despite the utility of MacCallum’s triadic formula and its strong influence on analytic philosophers, however, Berlin’s distinction remains an important point of reference for discussions about the meaning and value of political and social freedom. Are these continued references to positive and negative freedom philosophically well-founded?

It might be claimed that MacCallum’s framework is less than wholly inclusive of the various possible conceptions of freedom. In particular, it might be said, the concept of self-mastery or self-direction implies a presence of control that is not captured by MacCallum’s explication of freedom as a triadic relation. MacCallum’s triadic relation indicates mere possibilities . If one thinks of freedom as involving self-direction, on the other hand, one has in mind an exercise-concept of freedom as opposed to an opportunity-concept (this distinction comes from C. Taylor 1979). If interpreted as an exercise concept, freedom consists not merely in the possibility of doing certain things (i.e. in the lack of constraints on doing them), but in actually doing certain things in certain ways — for example, in realizing one’s true self or in acting on the basis of rational and well-informed decisions. The idea of freedom as the absence of constraints on the realization of given ends might be criticised as failing to capture this exercise concept of freedom, for the latter concept makes no reference to the absence of constraints.

However, this defence of the positive-negative distinction as coinciding with the distinction between exercise- and opportunity-concepts of freedom has been challenged by Eric Nelson (2005). As Nelson points out, most of the theorists that are traditionally located in the positive camp, such as Green or Bosanquet, do not distinguish between freedom as the absence of constraints and freedom as the doing or becoming of certain things. For these theorists, freedom is the absence of any kind of constraint whatsoever on the realization of one’s true self (they adopt a maximally extensive conception of constraints on freedom). The absence of all factors that could prevent the action x is, quite simply, equivalent to the realization of x . In other words, if there really is nothing stopping me from doing x — if I possess all the means to do x , and I have a desire to do x , and no desire, irrational or otherwise, not to do x — then I do x . An equivalent way to characterize the difference between such positive theorists and the so-called negative theorists of freedom lies in the degree of specificity with which they describe x . For those who adopt a narrow conception of constraints, x is described with a low degree of specificity ( x could be exemplified by the realization of any of a large array of options); for those who adopt a broad conception of constraints, x is described with a high degree of specificity ( x can only be exemplified by the realization of a specific option, or of one of a small group of options).

What perhaps remains of the distinction is a rough categorization of the various interpretations of freedom that serves to indicate their degree of fit with the classical liberal tradition. There is indeed a certain family resemblance between the conceptions that are normally seen as falling on one or the other side of Berlin’s divide, despite there being some uncertainty about which side to locate certain particular conceptions. One of the decisive factors in determining this family resemblance is the theorist’s degree of concern with the notion of the self. Those on the ‘positive’ side see questions about the nature and sources of a person’s beliefs, desires and values as relevant in determining that person’s freedom, whereas those on the ‘negative’ side, being more faithful to the classical liberal tradition, tend to consider the raising of such questions as in some way indicating a propensity to violate the agent’s dignity or integrity. One side takes a positive interest in the agent’s beliefs, desires and values, while the other recommends that we avoid doing so.

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Freedom of speech

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The pros and cons

There are good reasons to preserve freedom of speech – the case is made with formidable power in John Stuart Mill’s classic text, On Liberty (1859). In a society in which speech is free, there will be an interchange of ideas, truths that damage those in power will be more difficult to suppress, and common views will not ossify into dead dogmas. However, freedom of speech also has its dangers: speech could damage a state (that is, betray state secrets); speech could incite violence against people, and speech could offend other people.

We can look at these, as indeed Mill looked at these, against the background of his ‘one simple principle’: ‘That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant.’ However, when it comes to the actual details, things are not so clear.

Take betraying state secrets. When Edward Snowden leaked all kinds of state secrets to the press, was he inflicting damage on the legitimate activities of the state, or was he bringing to light activities that really should not have been being performed by the state? What is the line between protecting information, the release of which would be damaging to the state, and protecting information, the release of which would be embarrassing to the state? Where that line should be drawn is one matter, but all sides agree that it should be drawn somewhere.

The dangers of free speech

The second issue, speech that incites violence, is also tricky. Mill himself thought that people should not be allowed to put the blame for hunger on corn dealers to an angry mob outside a corn dealer’s house (in his example), even though they should be allowed to express those views in a newspaper. There are all too many instances of speech causing, or being part of the cause of terrible events.

The genocide in Rwanda was helped along by radio broadcasts in which Tutsis were called ‘cockroaches’, who needed to be ‘exterminated’. Should, however, all speech that might incite violence be banned? What if there really is a group of people in a society who really are doing terrible things? Drawing attention to those things might well increase the probability of violence being committed against that group, but would it be wrong to do so? This, of course, underpins the complaint that ‘political correctness’ has prevented those in authority from calling out bad behaviour supposedly characteristic of certain racial groups.

Harm and offence 

Perhaps the trickiest is whether we should ban speech that causes offence. Mill’s thought seemed to be that offence will cause discomfort, but discomfort is not a harm. At least, discomfort is not enough of a harm to outweigh the benefit of freedom of speech. There are at least two issues here that we would need to sort out. The first is to work out where to draw the line between speech that causes offence that should be banned, and speech that causes offence that should be allowed. The second is to work out whether there really is a difference, in principle, between offence and harm.

Some might say that any speech that gives offence should be banned. The implications of doing this would be draconian. Some people are very sensitive – imagine if I were offended by the very mention of homosexuality. Would that be a reason – any reason at all – to ban such speech? Knowing this fact about me, it might be polite not to bring the topic up in my company (on the other hand, there might be other reasons to do so), but that falls a long way short of banning it.

Social challenges 

Others might say the mere fact that speech causes offence should never be a reason to ban it. As Voltaire’s biographer put it in summing up the great philosopher’s views, ‘I don’t agree with what you say but I will defend to the death your right to say it.’ This also does not seem right. Should people have to endure racist or sexist abuse? Should whole communities be made to feel uncomfortable by being described in derogatory terms? Somewhere between these two positions, a line needs to be drawn, but it is difficult to see where. On the other issue, whether there really is a clear distinction between harm and offence, Mill now seems a little naïve. We know more than he did about the psychological damage done to people by relentless hounding, or by hate speech.

Treading the line between being too restrictive about what people are allowed to say, and being too permissive, is one of the big challenges faced by societies. Getting it wrong either way brings real dangers. It is, perhaps, one of the best ways of judging a society to see where it draws the line.

Mill, John Stuart. (1974). On Liberty . London: Penguin Books.

Hall, Evelyn Beatrice. (2015). The Life of Voltaire . London: Arkose Press.

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The freedom of expression is vital to our ability to convey opinions, convictions, and beliefs, and to meaningfully participate in democracy. The state may, however, ‘limit’ the freedom of expression on certain grounds, such as national security, public order, public health, and public morals. Examples from around the world show that the freedom of individuals to express their opinions, convictions, and beliefs is often imperilled when states are not required to meet a substantial justificatory burden when limiting such freedom. This article critiques one of the common justificatory approaches employed in a number of jurisdictions to frame the state’s burden to justify limitations on the freedom of expression—the proportionality test. It presents a case for an alternative approach that builds on the merits and addresses some of the weaknesses of a typical proportionality test. This alternative may be called a ‘duty-based’ justificatory approach because it requires the state to demonstrate—through the presentation of publicly justifiable reasons—that the individual concerned owes others a duty of justice to refrain from the expressive conduct in question. The article explains how this approach is more normatively compelling than a typical proportionality test. It also illustrates how such an approach can better constrain the state’s ability to advance majoritarian interests or offload its positive obligations by limiting the freedom of expression of minorities and dissenting voices.

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The Bill of Rights and Freedom of Belief and Expression: They Provide for Liberty, Not License

Toleration and the Law

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Introduction

The freedom of expression is vital to our ability to convey opinions, convictions, and beliefs, and to meaningfully participate in democracy. The state may, however, ‘limit’ the freedom of expression for certain reasons. International and domestic law empowers the state to impose limitations on the freedom of expression in order to advance broad aims such as national security, public order, public health, and public morals. Yet cases from around the world demonstrate that the freedom of expression is vulnerable to unwarranted restrictions.

One of the most common tests used to determine whether a limitation on the freedom of expression is justified has come to be known as the ‘proportionality test’. In this article, I critique the typical proportionality test that is applied in many jurisdictions. I then offer a justificatory approach that reframes this typical test to address some of its normative and practical weaknesses. This alternative approach places individual ‘duties of justice’ at the heart of the state’s burden to justify a limitation on the freedom of expression.

The first section of this article discusses the unique place that the freedom of expression occupies in the liberal tradition, and explains why a robust justificatory approach is needed to protect the freedom of expression from unwarranted limitations. The second section explores some of the main weaknesses of a typical proportionality test when applied in relation to limitations on the freedom of expression. I take examples from a number of countries to illustrate the recurring tendency for the freedom of expression to be subjected to unwarranted restrictions. In the final section, I make a case for a ‘duty-based’ justificatory approach. The approach would require the state to demonstrate—by presenting publicly justifiable reasons—that the individual concerned owes others a duty of justice to refrain from the expressive conduct in question. I explain how this approach addresses some of the normative weaknesses of a typical proportionality test. I will also illustrate how such an approach can better deal with the state’s ability to advance majoritarian interests or offload its positive obligations by limiting the freedom of expression of minorities and dissenting voices.

The Value of the Freedom of Expression

The freedom of expression broadly involves the communication of ideas, opinions, convictions, beliefs, and information. International legal instruments such as the International Covenant on Civil and Political Rights (ICCPR) recognise the ‘freedom of expression’ as a right that can be exercised ‘either orally, in writing or in print, in the form of art, or through any other media of [the individual’s] choice’ (art 19, para 2).

Taking the freedom of expression seriously involves acknowledging it both as a ‘liberty’ and a ‘claim right’. A ‘liberty’, conceptually speaking, refers to the absence of any competing duty to do or refrain from doing something (Hohfeld 1919 , pp. 36–39). Footnote 1 The freedom of expression is a liberty, as it involves absence of constraints on what an individual is free to express. For example, a person may have the liberty to advocate for a country’s ratification of the ICCPR, as there may be no competing duty owed to others to refrain from such advocacy. A ‘claim right’ meanwhile corresponds to another’s duty to do or refrain from doing something (Hohfeld 1919 , p. 39; see also George 1995 , pp. 119–122). The normative significance of a ‘right’ is that it is in some way claimable (O’Neill 1996 , p. 131; Hart 1955 ), i.e. that the rights-holder has an entitlement to claim, from duty-bearers, the performance of duties (Feinberg 1970 , p. 243). The freedom of expression entails ‘claim rights’, including the claim right to non-interference with the expression in question. Since claim rights correspond to duties, the freedom of expression imposes duties on others to refrain from interfering with the expression in question. For example, an individual’s claim right to advocate for the election of a particular candidate contemplates the imposition of duties on others, including the state, to refrain from interfering with such advocacy.

The reason we recognise certain claimable rights is often linked to the underlying interests these rights set out to protect. Joseph Raz observes a person has a ‘right’ when his interests are sufficient reason for holding others to be under a duty (Raz 1986 , p. 166). The importance of the interests that underlie the freedom of expression point to why we ought to, and indeed do, recognise it as a claimable right. Recalling such value is important, as the process through which we justify limitations on the freedom of expression is contingent on the value we attach to it.

On the one hand, the freedom of expression is of inherent value to the individual, as it involves the external communication of an individual’s ‘ forum internum ’ or inner realm of thoughts, beliefs, and convictions—a realm that is arguably inviolable (Boyle and Shah 2014 , p. 226). The freedom of expression is then connected to certain foundational values associated with the forum internum , such as personal autonomy and human dignity. On the other hand, the freedom of expression has consequentialist and epistemic value. It is certainly valuable to democracy, as political participation, criticism of government, media freedom, and indeed the very act of voting are aspects of the freedom of expression. John Stuart Mill’s defence of the freedom of expression points to its epistemic value. Mill argues that human fallibility justifies greater tolerance of the freedom of expression, as there can be no certainty with respect to what is true and what is false (Mill 1859 , pp. 19–21). He contends that there is no inherent justification for suppressing the beliefs and opinions of others through coercive means, even if one believes that those beliefs and opinions are untrue, as they may in fact be true, and the alternative beliefs and opinions untrue. Mill also claims that truth can only be ascertained in a ‘clearer’ and ‘livelier’ form when it is permitted to collide with error (p. 19), and adds that ‘conflicting doctrines’ often ‘share the truth between them’ (p. 44).

The inherent, consequentialist, and epistemic value of the freedom of expression suggests that it should not be limited without meeting a substantial burden of justification. When the conduct in question relates to the freedom of expression, this justificatory burden falls on those who wish to restrict the conduct. Such a scheme is consistently featured in the liberal tradition, and is consistent with the ‘fundamental liberal principle’ (Gaus 1996a , pp. 162–166)—that freedom is the norm and the limitation is the exception; so ‘the onus of justification is on those who would use coercion to limit freedom’ (Gaus 1996b ; Feinberg 1987 , p. 9). Therefore, in the case of the freedom of expression, the starting point in the process of reasoning is clear: an individual is ordinarily entitled to engage in the conduct associated with the freedom of expression, unless a restriction on the conduct is carefully and convincingly justified.

The Proportionality Test

Justification involves providing good reasons for an action, omission, or belief. According to Raz, a reason is ‘a consideration in favour of doing, believing, or feeling something’ (Raz 1999 , pp. 16–17; see also Scanlon 1998 , p. 17). Given the special value we attach to the freedom of expression, a reason must be of a particular kind when deployed to limit the freedom of expression. I accordingly approximate good reasons—in the specific context of justifying limitations on the freedom of expression—to what John Rawls called ‘public reason’ (Rawls 2005 , pp. 212–254). Rawls explains that ‘public reason’ entails the justification of political decisions through the use of values and standards that are publicly available and acceptable (pp. 227–228). Reasons can be characterised as ‘public’ when citizens who are equal accept them as valid (p. 213). Crucially, a reason does not fall within the rubric of public reason merely because the majority in society view it as a good reason. Even if, for instance, the overwhelming majority view some minority group as ‘culturally inferior’, public reason would exclude such inferiority as a justification for discriminating that group. It would be excluded because such perceived inferiority is not a reason that is publicly available and acceptable to all citizens on the basis of equal citizenship. Therefore, ideals of equality are imbedded into the concept of public reason; Equality is a constituent element that necessarily excludes purely majoritarian reasoning.

In this section, I examine one of the ‘prominent’ approaches (Möller 2014 , p. 32) to justifying limitations on the freedom of expression: the proportionality test. I aim to explain the typical features of this test, and point to some of its main weaknesses, particularly when applied to limitations on the freedom of expression.

A typical proportionality test assesses whether a limitation on a right can be ‘justified by reference to gains on some other interest or value’ (Urbina 2014 , p. 173). Most jurisdictions in Europe, and treaty bodies such as the United Nations Human Rights Committee, apply the proportionality test when evaluating the permissibility of limitations. The test usually contains four limbs (Tridimas 2007 , p. 139). First, the state must pursue an aim that serves a ‘compelling’ (Kumm 2004 , p. 593) or ‘legitimate’ interest (Tremblay 2014 , p. 865; Barak 2012 ) when limiting the right. This limb contains a normative requirement, as certain interests that are ‘illegitimate’ would not be permissible at the outset. For example, the aim to destroy a population would not qualify as ‘legitimate’. Second, there must be a rational nexus between the specific measure used to limit the right and the legitimate interest. This limb is sometime referred to as the ‘suitability test’ (Arai-Takahashi 2005 , p. 32; Van Dijk and Van Hoof 1998 : pp. 771–773). Third, this measure must be necessary to advancing, or preventing setbacks to, that legitimate interest. This limb is naturally termed the necessity test. Finally, the measure must be, in the ‘strict sense’, proportionate, i.e. it must involve a net gain, when the reduction in the enjoyment of the right is weighed against the level to which the interest is advanced (Rivers 2006 , p. 181). According to Aharon Barak, proportionality stricto   sensu  ‘requires a balancing of the benefits gained by the public and the harm caused to the…right through the use of the means selected by law to obtain the proper purpose’ (Barak 2012 , p. 340). Grégoire Webber meanwhile notes that such ‘balancing’ is designed to demonstrate a ‘proportionality’ between the negative effect (on the freedom of expression, for instance) on the one hand, and the beneficial effect of the limitation (in terms of the legitimate interest) on the other hand (Webber 2009 , pp. 71–72).

Different versions of the proportionality test have been applied in different jurisdictions. The German Federal Constitutional Court, for instance, applies a four-part test that considers the question of ‘balancing’ only in the final stage of the test. This version of the test has come to reflect a general rule of law within European Community law (Arai-Takahashi 2005 , p. 29). By contrast, the Canadian Supreme Court considers ‘balancing’ at earlier stages as well, i.e. under the legitimacy and necessity subtests (Grimm 2007 ). The Court has found that, under the legitimacy subtest, the legitimate interest must be of sufficient importance to warrant overriding the right in question (R v. Oakes 1986 ; Choudhry 2006 ). Moreover, under the necessity subtest, the selected measure must, when compared to the available alternatives, impair the right the least . Accordingly, the Canadian version of the test expects some balancing to be undertaken when determining which aims are legitimate for the purpose of justifying a limitation, and when determining whether the measure in question is the least restrictive among available options. Meanwhile, in the United States (U.S.), ‘content-based’ limitations on the freedom of expression attract ‘strict scrutiny’, i.e. the highest level of judicial scrutiny of the restrictive measure. This approach is essentially founded on an American common law idea that the right to the freedom of expression—protected under the First Amendment to the United States Constitution—is a highly valued individual right (Strauss 2002 ). In the U.S., the state must accordingly meet the heaviest justificatory burden when restricting certain types of speech, such as political speech. By contrast, ‘content-neutral’ limitations on the freedom of expression (for example, restrictions on the form, extent, timing, or medium of the expression in question) are reviewed under a ‘intermediate scrutiny’ test. The U.S. Supreme Court formulated a four-part test to determine whether a content-neutral limitation is constitutional (United States v. O’Brien 1968 ; see also Zoller 2009 , p. 906; Stone 1987 ): (1) the limitation must be within the constitutional power of government; (2) the limitation must further an important or substantial governmental interest; (3) the governmental interest must be unrelated to the suppression of the freedom of expression; and (4) the limitation must be narrowly tailored—no greater than necessary. In subsequent cases, the Supreme Court devised a fifth limb: the limitation must leave open ample opportunity for communication (Ladue v. Gilleo 1994 ). Although the justificatory approach prevalent in the U.S. is rarely termed a ‘proportionality test’, it clearly contains elements of balancing. Whichever version of the test is employed, it is apparent that the proportionality test generally involves a justificatory burden of a particular form: the limitation on the freedom of expression is justified only if the countervailing interests outweigh the individual’s interests in the freedom of expression. It is for this reason that the very notion of proportionality is described as ‘inevitably flexible and open-textured in nature’ (Arai-Takahashi 2005 , p. 34).

A typical proportionality test has a number of weaknesses worth noting. There is an ongoing scholarly debate on the suitability of the test, and in the course of discussing some of the weaknesses I detect in the typical version of the test, I shall touch on some of the elements of this debate. Of course, proponents of proportionality often argue that the weaknesses pointed out by critics are with respect to cases in which the test is misapplied, and that the proportionality test is sound if it is applied correctly (e.g. Möller 2014 ; Kumm 2010 ). However, the strength of the test lies in how it is applied in practice. In this context, I set out to evaluate the ‘typical’ proportionality test, which contains both normative and political weaknesses when applied to assess limitations on the freedom of expression. In doing so, I leave open the potential for the test to be applied in a more robust manner. In fact, my proposal conceives of a more robust version of the test.

At a normative level, the typical test often fails to adequately recognise and account for the special value of the freedom of expression. Such a weakness is particularly evident where the court or tribunal concerned glosses over the first three limbs of the test and focuses instead on the final stage of balancing. Kai Möller, referring to German practice in particular, observes that typically, ‘the balancing stage dominates the legal analysis and is usually determinative of the outcome’ of the assessment of whether a limitation is permissible or not (Möller 2014 , p. 34). When the emphasis of the assessment is on balancing alone, the court or tribunal would often rely on practical reasoning to determine the permissibility of a limitation (Kumm 2010 , p. 147). It is for this reason that many rights scholars have criticised the proportionality test for its failure to give adequate normative weight to individual rights (Letsas 2007 ; Tsakyrakis 2009 ). According to these critics, proportionality treats rights on par with any other interest or value, and such an equation undermines the special importance we attach to rights. Many of these critics rely on well-known ‘rights-based’ approaches to justifying limitations on rights, such as the approaches advocated by Ronald Dworkin and John Rawls. According to Dworkin, individual rights, such as the right to the freedom of expression, ‘trump’ other non-rights interests (Dworkin 1977 , p. xi). He argues that non-rights interests, such as collective interests, should be ruled out when justifying limitations on individual rights (Dworkin 1984 , p. 153; see also Waldron 1993 , p. 210). This approach is based on the view that rights have peremptory value; they exist, and ought to be protected, even if the community is genuinely worse off due to their existence or protection (Dworkin 1985 , p. 350). Understood this way, the right to the freedom of expression constrains the state’s pursuit of collective interests, and sets out a protected realm that the state cannot interfere with even when collective interests could be served through such interference. Rawls meanwhile argues that basic liberties, such as the freedom of expression, can only be limited for its own sake or for the sake of other basic liberties (Rawls 1999 , p. 220). These basic liberties have ‘lexical priority’ Footnote 2 over all other types of interests. Accordingly, basic liberties such as the freedom of expression would have ‘absolute weight’ with respect to interests unrelated to basic liberties (Rawls 2005 , p. 294). For example, the freedom of expression cannot be denied to an individual on grounds such as ‘economic efficiency and growth’ (pp. 294–295). Therefore, all reasons that are not related to basic liberties of similar importance to the freedom of expression will be excluded (at the outset) from the justificatory process. In sharp contrast to these rights-based approaches, the proportionality test expects a court or tribunal to weigh rights such as the right to the freedom of expression with collective interests such as national security, or public order, health, or morals. Such weighing—it could be argued—places the freedom of expression on the same normative plane as these collective interests, thereby undermining its peremptory value.

This normative challenge is strongly linked to the textual framework of many international and domestic instruments that set out the basis for limiting the freedom of expression. For example, article 19, paragraph 2 of the ICCPR, and article 10, paragraph 2 of the European Convention on Human Rights (ECHR), explicitly permit states to limit the freedom of expression on the grounds of collective interests, such as public order and public health. Similarly, the constitutions of numerous countries permit limitations on the freedom of expression on the basis of a host of collective interests. The challenge may then also be doctrinal, as the typical proportionality test often suffers from normative weaknesses essentially because the legal doctrine that sets out the test reflects these weaknesses. Accordingly, the ICCPR and the ECHR can encounter normative problems in practice, as the limitation regimes found in these instruments contemplate broad governmental discretion when imposing limitations on the freedom of expression. Such discretion has raised serious concerns among scholars with respect to how well proportionality meets normative priorities such as the rule of law, or legal predictability (Von Bernstorff 2014 , p. 66; Urbina 2014 , p. 180).

At a political level, a typical proportionality test is vulnerable to two risks associated with granting the state wide discretion to limit the freedom of expression. First, the state can use a limitation regime to advance majoritarian interests. The freedom of expression of minorities and political dissenters may be targeted for reasons that are not publicly justifiable. In this context, majoritarian interests can infiltrate limitation grounds such as national security, public order, public health, and public morals. Second, the state can, in the course of limiting an individual’s freedom of expression, attempt to offload its own positive obligations owed to society. An individual’s expressive conduct can appear to ‘cause’ others to react in ways that harm third parties. Such cases often arise when the expressive conduct has a religious dimension. Although the expressive conduct may also be classified as religious manifestation or practice, it is difficult to exclude such conduct from the broader domain of the freedom of expression. In such cases, the state may choose to restrict the specific expressive conduct rather than focus on the wrongdoers who engage in violence. It is the state that owes citizens a positive obligation to maintain law and order, and it is up to the state to prevent violence, and punish those who engage in it for whatever cause. However, when the violence is committed by members of the majority community, the state may look to target the individual whose conduct appeared to ‘cause’ the wrongdoing, rather than risk confronting the majority community. In such circumstances, it may attempt to justify a restriction on the expressive conduct of the individual concerned, ostensibly to maintain public order and protect citizens from the violent reactions of others. It may do so regardless of how unreasonable such reactions are.

The typical proportionality test has no convincing answer to the political risks associated with state authority to limit the freedom of expression. It relies heavily on the good faith of the state, and the ability of a court or tribunal to convincingly weigh the competing interests at stake. Yet several examples from a variety of jurisdictions demonstrate that courts and tribunals are often compelled to offer the state wide discretion. The proportionality test only requires the adjudicative body to assess which of the two interests—the individual’s interest in the freedom of expression or the legitimate interest being pursued by the state—is weightier. It would not contemplate any specific threshold that signals that the competing interest is sufficiently weighty. Scholars such as Francisco Urbina accordingly point out that the incommensurability of competing values and interests makes the proportionality test unsuited to determining the permissibility of limitations on rights (Urbina 2015 ). Given that it is so difficult to undertake the task of balancing with any precision, the adjudicative body would often defer to the state.

A number of illustrations demonstrate both the normative and political weaknesses inherent in a typical application of the proportionality test. Admittedly, some of these cases overlap with the terrain of other rights, such as the freedom of religion or belief. Yet the point about the freedom of expression is that it is a general core right that underlies many other rights. The inherent weaknesses of the typical proportionality test are best observed precisely in these complex cases where several rights are at play. Three classes of cases may be briefly cited to illustrate the weaknesses I am referring to.

First, the state may rely on majoritarian conceptions of morality to restrict certain expressions deemed contrary to those conceptions. The classic example of such restrictions on the freedom of expression is the landmark case of the European Court of Human Rights, Handyside v. The United Kingdom ( 1976 ). In this case, the Court upheld the seizure of an educational book that dealt with the subject of sex, and found no violation of the freedom of expression in terms of article 10 of the ECHR. The limitation was justified on the basis of public morals. A similar example is the restriction of the advocacy of same-sex rights in Russia. In Fedotova v. The Russian Federation ( 2012 ), the complainant displayed posters that read ‘homosexuality is normal’ and ‘I am proud of my homosexuality’. The posters were displayed near a secondary school. The complainant claimed that the purpose of the expression was to promote tolerance towards gay and lesbian individuals. She was convicted of public actions aimed at ‘propaganda of homosexuality’ among minors. The state asserted that the conviction was necessary in the interests of children ‘to protect them from the factors that could negatively impact their…moral development’ (para 5.6 of the Decision of the Human Rights Committee). The Human Rights Committee relied on the principle of non-discrimination, and found that the limitation was discriminatory on the basis of sexual orientation. It did not actually apply a typical proportionality test to deal with the limitation, and instead relied on an additional normative basis to find a violation of the freedom of expression. The case serves as a reminder that a typical proportionality test would only require the balancing of the individual’s interests in the freedom of expression with the asserted public interest in morality and moral development. Such a test would not account for the fact that the asserted interest in public morals is actually a majoritarian—for instance, heteronormative—conception of morality. The typical test would need to be bolstered to deal with the challenge. The Committee accordingly bolstered the test by relying on the principle of non-discrimination. However, if a more general prohibition on expressions about sex had been instituted, such as, for example, the censoring of a book dealing with sex education, the Committee’s reliance on the principle of non-discrimination alone would not have sufficed.

Second, the state may rely on majority values and interests to restrict certain types of expressions deemed a threat to these values and interests. The jurisprudence of the European Court of Human Rights offers a number of examples of such restrictions. In these cases, the doctrine set out in the text of article 10 of the ECHR has governed the Court’s reasoning. The Court has typically applied a four-part test: the limitation must (1) be provided by law; (2) pursue a legitimate aim listed in the article; (3) be necessary in a democratic society; and (4) be proportionate stricto   sensu . Some proponents of the proportionality test adopted by the European Court of Human Rights have suggested that the phrase ‘necessary in a democratic society’ entails a commitment to pluralism, and is a check on majoritarianism (Zysset 2019 , p. 235). Indeed, the Court has viewed certain aspects of the freedom of expression, such as press freedom, and the criticism of public officials, as vital due to their relevance to the democratic process. It has accordingly placed a heavy justificatory burden on the state when expressive conduct associated with ‘democracy’ is being restricted (Thoma v. Luxembourg 2001 ). Yet, this counter-majoritarian check is not always evident in the Court’s jurisprudence, particularly when the religious sentiments of the majority community are at stake. In the case of İ.A. v. Turkey ( 2005 ), the managing director of a publishing house was convicted of blasphemy for publishing a novel that was deemed deeply offensive to Muslims. The applicant complained that the conviction violated his freedom of expression under article 10 of the ECHR. In response, the state argued that ‘the criticism of Islam in the book had fallen short of the level of responsibility to be expected of criticism in a country where the majority of the population were Muslim’ (para. 20 of the judgement). Accordingly, the Court was called upon to weigh the individual’s freedom of expression with the majority community’s interests in their own freedom of thought, conscience, and religion. The majority of the Court held that the novel contained statements that amounted to ‘an abusive attack on the Prophet of Islam’ (para. 29). It concluded that the restriction was reasonable, as it ‘intended to provide protection against offensive attacks on matters regarded as sacred by Muslims’ (para. 30). It accordingly found that there was no violation of article 10, and that the measures under consideration satisfied the proportionality test.

The European Court’s observations in İ.A. v. Turkey relied heavily on the doctrine of margin of appreciation, which is often applied to afford states some ‘latitude’ when limiting rights (Arai-Takahashi 2002 , p. 2). The doctrine was applied in the case of Handyside v. the United Kingdom ( 1976 ), and has since been relied upon to justify some level of judicial deference to states on questions of limitations. For example, in Otto-Preminger-Institut v. Austria ( 1995 ) and in Wingrove v. The United Kingdom ( 1996 ), the Court relied on the margin of appreciation doctrine to hold that the restriction of expressions that caused public offence to the majority religious group (in both cases the majority group was Christian) was permissible under the ECHR. In each case, the Court found no violation of article 10 of the ECHR, and held that the restrictions on the public screening of films deemed offensive to a religious majority were proportionate.

The margin of appreciation doctrine has also been applied in cases involving religious expression, including wearing certain religious attire. Cases such as S.A.S v. France ( 2014 ) and Leyla Şahin v. Turkey ( 2005 ) essentially concerned article 9 of the ECHR, which protects the freedom to manifest religion or belief. However, the applicants in both cases also claimed that the limitations in question violated their freedom of expression under article 10. The Court upheld restrictions on the niqāb (a full-face veil) and the Islamic headscarf on the basis that such attire is incompatible with ‘European’ values such as ‘living together’ and ‘secularism’, and found that these restrictions did not violate article 10 of the ECHR. In such cases, the Court has sought to balance the individual’s right to the freedom of expression (including the freedom to engage in certain types of religious expression) with broader societal aims such as secularism, and has held that the limitations in question were proportionate. In each case, the Court has relied on the margin of appreciation doctrine to evaluate the permissibility of the limitation on the freedom of expression. The doctrine has thus attracted intense criticism from scholars—primarily due to the fact that the Court has often lacked a coherent and consistent approach to applying the doctrine (Letsas 2006 ).

Third, the state may rely on broad conceptions of ‘public order’ to restrict expressions that may ‘cause’ others to react in a violent or disorderly manner. In the case of Zaheeruddin v. State ( 1993 ), the Pakistani Supreme Court speculated that the public expressions of the Ahmadi community claiming that they are ‘Muslim’ would provoke outrage among the Sunni majority (Khan 2015 ). It therefore justified restricting the public display of the Kalimah Footnote 3 on the basis of public order. The Human Rights Committee has also considered cases involving limitations on the freedom of expression on the basis that the expression in question could cause others to engage in disruptive conduct. In Claudia Andrea Marchant Reyes et al. v. Chile ( 2017 ), the Committee considered the removal and destruction of a work of art on the grounds of ‘public order’. The work of art contained fifteen banners commemorating the fortieth anniversary of the military coup d’état in Chile. The complainant had in fact obtained the necessary approvals to display the banners at nine bridges. The state, however, argued that the removal of the banners was necessary to prevent ‘potential disruption to public order arising out of the burning of the banners’, and that it was the state’s ‘duty’ to safeguard public order. It argued that the limitation was for the ‘benefit of persons who crossed the bridges in question on a daily basis, given that the banners could have been burned precisely at the times of the greatest movement of people and caused injury’ (para 4.3 of the Committee’s decision). In this particular case, the Committee found that the limitation was unwarranted, as the state provided ‘no evidence of what specific information it had that gave rise to fears that the work might be burned’ (para 7.5). Its decision may have been different if in fact there was such evidence. In any event, the case remains a good example of how the state may seek to offload its obligation (to maintain public order) onto the individual concerned by limiting the individual’s freedom of expression—a vulnerability to which the typical proportionality test has no coherent response.

Majoritarian conceptions of certain public interests, including public order and morals, often drive the state’s justification for a limitation on the freedom of expression. The state can also offload its positive obligations to maintain public order in the course of limiting an individual’s freedom of expression, and seek to justify restrictions on expressions that attract majority outrage. These types of justifications can infiltrate the reasoning of the court or tribunal tasked with assessing the proportionality of the limitation. In essence, the typical proportionality test, which asks the adjudicative body to do no more than weigh competing interests, does not avoid these political risks. In the final section of this article, I present an alternative justificatory approach that attempts to build on the merits, and address the weaknesses, of a typical proportionality test.

A Duty-Based Justificatory Approach

The alternative justificatory approach I have in mind is not a radical departure from the typical proportionality test. The alternative approach also contemplates ‘balancing’. Its main departure from the typical proportionality test is that it seeks to direct the state’s justificatory burden towards the demonstration of an individual ‘duty of justice’ towards others. I imagine such redirection can be done within the parameters of a test that still features proportionality as part of its final limb. The state would simply be required to demonstrate—in the course of meeting the first three limbs of the test—that the individual concerned owes a duty of justice to others. Even when such a duty is demonstrated, the question of proportionality would remain relevant, as the specific means by which the restriction is imposed may be subject to the requirement of proportionality. For example, a duty of justice may ground the state’s justification for restricting the public display of obscene material. However, the state is still bound by considerations of proportionality. While it may be proportionate to fine a person for displaying obscene material in a public place, it may be disproportionate to incarcerate that person. Bearing this scheme in mind, I shall argue that a duty-based approach addresses some of the more fundamental normative and political weaknesses associated with the typical proportionality test.

Duties of Justice

The freedom of expression is an individual liberty. According to the Hohfeldian conception of a ‘liberty’, which is both widely accepted and conceptually compelling, a liberty can only be constrained by a competing duty that correlates to another’s claim right. Not all duties correlate to rights. For instance, imperfect moral duties (Mill 1861 ) or ‘duties of charity’ (Goodin 2017 ) do not correlate to rights. For example, a duty to water a plant on behalf of a neighbour does not correlate to the neighbour’s ‘right’ that the plant is watered (Raz 1986 , p. 77). By contrast, an individual’s ‘duties of justice’ are duties that correspond to the rights of others; scholars such as Robert Goodin rightly observe that the state can ‘justifiably compel people to perform’ such duties (Goodin 2017 , pp. 268–271).

Conceptually speaking, duties of justice shape the extent and scope of individual liberty. For example, if X has the liberty to say φ, X has no duty of justice to refrain from saying φ, i.e. no other person has a claim right that X refrains from saying φ. But if X owes Y a duty to refrain from saying λ, X ’s freedom of expression does not extend to saying λ. Only the sphere that is not duty-bound corresponds to A ’s freedom of expression. If individual liberty is constrained by competing duties of justice, it follows that an individual’s ‘liberty’ to express something means they do not owe others a duty of justice to refrain from expressing that thing. If an individual owes others a duty of justice to refrain from expressing something, the individual has no liberty to express that thing. In such cases, the state may be justified in restricting the conduct. A duty of justice is, therefore, not the starting point of the reasoning process, but the endpoint. It is the destination one arrives at when one convincingly demonstrates that the competing interests against the conduct in question are important enough to constitute a claim right against the conduct, thereby imposing on the individual concerned a duty of justice to refrain from the conduct.

What would a duty-based approach to justifying limitations on the freedom of expression look like? The duty-based approach that I have in mind has two features. First, it incorporates the idea of ‘public reason’ to ensure that only publicly justifiable reasons may be put forward by the state when justifying a limitation on the freedom of expression. This element would necessarily strengthen the legitimacy limb of the proportionality test. Only aims that are publicly justifiable would be considered legitimate, and could form the basis for a limitation on the freedom of expression. Aims that societies cannot find agreement on would not be eligible. For instance, the aim of ensuring ‘the glory of Islam’—an aim found in article 19 of Pakistan’s Constitution—would not by itself suffice as a legitimate ground on which the freedom of expression can be limited. Similarly, ‘secularism’, if not an aim shared by many religious minorities in a country, would not in and of itself be valid grounds for limiting the freedom of expression.

Second, the approach I am proposing requires the state to demonstrate a direct responsibility on the part of the individual concerned. This feature of the duty-based approach is consistent with the doctrine of double effect discussed by scholars such as Seana Shiffrin. According to Shiffrin, the double-effect doctrine ‘asserts that it may, sometimes, be more permissible to bring about harm as a foreseen or foreseeable but unintended side effect of one’s otherwise permissible activity than to bring about equally weighty harmful consequences as an intended means or end of one’s activity (emphasis added)’ (Shiffrin 2003 , pp. 1136–1139). A similar principle is found in tort law, under which ‘one would not be held liable for harm…if the harm resulted from deliberate intervention of another agent’ (Marmor 2018 , p. 153). Individual liberty is ultimately shaped by the ‘horizontal’ duties the individual concerned owes others (Knox 2008 , p. 2). These are horizontal to the extent that one individual owes other individuals, or the community at large, a duty to refrain from engaging in intentional conduct that would cause them harm. Therefore, one’s duties of justice are confined to the sphere in which one has direct responsibility for the intended consequences. If, for instance, the violent reactions of others are in fact an intended consequence of the expressive conduct—such as in cases of incitement to violence—it follows that one fails to fulfil a duty of justice to refrain from harming others. Yet if the reactions of others are unintended , it is difficult to maintain that a duty of justice was unfulfilled. One cannot take responsibility for the violent acts of others.

A duty-based justificatory approach is more normatively compelling and politically appealing than a typical proportionality test. The scheme I am proposing addresses the normative weakness associated with the typical proportionality test wherein the special importance we attach to the freedom of expression is often undermined. When certain expressive conduct is presumptively associated with the freedom of expression, the conduct cannot be restricted unless the competing interests at play form a sufficient reason to impose on the individual a duty of justice to refrain from the conduct. The state would need to demonstrate that the individual concerned owes such a duty of justice. A duty of justice, once demonstrated, becomes the placeholder for the publicly justifiable reasons we might have for imposing coercive legal measures against the conduct in question.

The distinction I wish to draw between a duty-based approach and a typical proportionality test can be illustrated as follows. A typical proportionality test would require the state to establish that the interest in the freedom of expression is outweighed by the competing interests at play. A duty-based approach simply rejects the idea that a limitation on the freedom of expression can be justified by claiming that the competing interest is weightier than the individual’s interest in freedom of expression. The freedom of expression, after all, has special normative value, and should not be merely weighed against competing interests. A duty-based approach requires the state to demonstrate that the competing interests are sufficiently weighty to impose a duty on the individual to refrain from engaging in the expressive conduct in question. This justificatory burden is different to a burden to merely demonstrate that the competing interest is weightier than an interest in the freedom of expression. Instead of asking which interest is weightier, a duty-based justificatory burden requires the state to demonstrate that the competing interest is weighty enough to constitute a claim right (held by others), and a duty of justice (owed by the individual concerned). Under a duty-based approach, the weight of the interest in the freedom of expression is not actually compared with the weight of any competing interest. Instead, specific expressive conduct can be excluded (on the basis of public reason) from the scope of the freedom of expression in view of the fact that the individual concern owes others a duty to refrain from such conduct. This approach retains the normative significance of the freedom of expression instead of subjecting it to consequentialist balancing.

A political case can also be made for adopting a duty-based justificatory approach. Such an approach can place a counter-majoritarian check on state authority to impose limitations on the freedom of expression. A typical proportionality test does not have a specific answer to majoritarian infiltration of interests such as national security, public order, public health, and public morals. It does not have a coherent response to common instances in which majoritarian interests are advanced under the guise of these ‘public’ interests. It also often fails to contend with cases in which the state seeks to offload its own positive obligations by limiting an individual’s freedom of expression. Such offloading is common when members of a majority community violently react to expressions that are unpopular or considered offensive. The state can then use limitation grounds such as ‘public order’ to limit the individual’s freedom of expression for presumably ‘causing’ the violent reaction, rather than focus on the violent reaction itself.

A duty-based approach to justifying limitations on the freedom of expression makes it more difficult for the state to advance majoritarian interests or offload its positive obligations. For instance, if the competing interest concerns public order, the state would need to demonstrate that the ‘public order’ interests at stake are actually sufficient reason to constitute a claim right against the expressive conduct in question. It is not at all obvious that an individual merely expressing something offensive owes a duty to refrain from such expression, even when such offence can lead to lawlessness—especially when the individual does not intend to incite lawlessness. Under a duty-based approach, the competing interests that form the basis of a limitation on the freedom of expression must be sufficient to ground in the individual concerned a duty of justice to refrain from the conduct in question.

An illustration may help explain the political case for the duty-based approach. Let us assume an animal rights activist criticises ritual animal slaughter by the majority religious community in the country. The ritual is considered deeply sacred to the customs of the majority community, and the criticism outrages a number of those belonging to the community. There are subsequent calls to arrest the activist and ban such criticism. The state takes no action at first, and as a result, several members of the majority community engage in violent and disruptive protests in public spaces. The state initially arrests some of the perpetrators, but also decides to prohibit the activist and others from engaging in any further criticism of ritual animal slaughter. It justifies the prohibition on the basis that the impugned conduct, i.e. the criticism of animal slaughter, ‘causes’ others to engage in violent and disruptive behaviour, which impairs public order . The state may articulate its justification for the limitation in the following manner: others have an interest in public order, and if certain criticism directly causes persons to engage in acts of public disorder, the state is justified in restricting such criticism. There is no doubt that the interest in public order is important. Such an interest, for instance, grounds a positive obligation in the state to prevent violent and disruptive behaviour. Individuals meanwhile have duties to refrain from such behaviour. But at no point is it apparent that an individual engaging in contentious and unpopular criticism owes a duty of justice (i.e. a duty that directly corresponds to the claim rights of others) to refrain from such criticism—even if such criticism appears to have ‘caused’ others to react violently. A typical proportionality test does not confront this problem, as it does not necessarily require the state to deal with intentionality when limiting the freedom of expression. It would only require the adjudicative body to weigh the individual’s interest in the freedom of expression against the interests of others in public order; a restriction on such criticism could conceivably be justified if the court or tribunal decided that the competing interests outweighed the interest in the freedom of expression. The state’s intention to appease a majority community, or offload its positive obligations, may very well go unchecked.

A duty-based approach directs the state to demonstrate an individual duty of justice, which necessarily incorporates public reason, and the direct responsibility of the individual. In terms of the illustration concerning ritual animal slaughter, to say that interests in public order are publicly justifiable reasons to restrict an activist’s criticism seems unreasonable, as it ignores the fact that it is someone else’s conduct and not the activist’s conduct that actually results in setbacks to public order. Therefore, the state would need to do much better to demonstrate that the activist concerned owes others a duty of justice to refrain from criticising animal slaughter if a limitation on the activist’s freedom of expression in that respect was to be justified. The state is then, to some extent, prevented from offloading its positive obligation (to prevent public disorder) onto the activist. This is the fundamental political value of a duty-based justificatory approach. It is not only a more normatively compelling approach, wherein the special importance of the freedom of expression is better preserved; it is also a politically appealing approach, as it requires the state to justify a limitation on the freedom of expression based on the specific horizontal relationship that exists between the individual and others in society.

Is the Language of Duties Dangerous?

The language of duties can be hijacked by those seeking to diminish the scope of rights. It is therefore natural for the language of duties to attract scepticism and suspicion. For example, the ‘Asian values’ project advanced by political actors such as former Singaporean Prime Minister Lee Kuan Yew relied on a language of ‘duties’ (among other terms such as ‘obedience’ and ‘loyalty’) as a means of deflecting concern for human rights (Sen 1997 ). Moreover, in 2007 and thereafter, the UK witnessed a surge in interest among political actors to frame a new bill of ‘rights and duties ’. The discourse enabled some political actors to call for the replacement of the UK’s Human Rights Act of 1998 with a new bill that focuses both on individual rights and responsibilities. It is therefore natural for the language of duties to attract scepticism and suspicion. But as pointed out by Samuel Moyn, ‘the need to guard against destructive ideas of duty is a poor excuse for ignoring beneficial liberal ones’ (Moyn 2016 , p. 11).

Despite the obvious risks, adopting the language of duties to describe a more robust justificatory approach is valuable, both for methodological and ethical reasons. First, it is not possible to articulate each and every ‘claim right’ in terms of well-recognised ‘human rights’. A person’s claim right that another person refrains from doing something specific cannot always be articulated as a ‘human right’. For instance, a person’s claim right that another person refrains from causing public unrest is certainly a ‘claim right’, but cannot easily be framed in terms of a specific ‘human right’ found in, say, the ICCPR or ECHR. By contrast, it can easily be framed as an interest that both these treaties recognise—‘public order’. A person’s interest in public order, in certain circumstances, is sufficient reason to impose on another person the duty to refrain from expressive conduct that could directly harm that interest. In such circumstances, that person would have a claim right and the other would have a duty of justice to refrain from such conduct. Framing the state’s burden to justify the limitation in terms of ‘rights’ could lead to confusion, as it may prompt us to look for a ‘human right’. Instead, the relevant ‘claim right’ is contingent on the outcome of a reasoning process whereby the importance of the public order interest, in the specific circumstances under consideration, is sufficient reason to impose on an individual a duty to refrain from conduct that directly impairs the interest. This justificatory approach may be better described as a ‘duty-based’ approach because the outcome of the reasoning process is the demonstration of an individual duty of justice to refrain from engaging in the conduct in question.

Second, there is an ethical benefit to reclaiming the language of duties. Such language can help individuals make ethical sense of how their expressive conduct impacts others. David Petrasek correctly observes that the language of duties introduces a certain ‘global ethic’ to modern human rights discourse (Petrasek 1999 , p. 7), which is currently missing. Moyn poignantly notes: ‘Human rights themselves wither when their advocates fail to cross the border into the language of duty’ (Moyn 2016 , p. 10). Such language can then ‘instil in individuals the idea that they should act in ways that support basic shared values’ (Petrasek 1999 , p. 48), and motivate them to be more aware of their ethical obligations to others. Framing a limitation only as a means of advancing legitimate interests, or relying purely on the language of proportionality, cannot offer this ethical dimension. Therefore, the risks associated with the language of duties are ultimately outweighed by its methodological and ethical benefits.

In this article, I evaluated a typical proportionality test when applied to cases concerning limitations on the freedom of expression, and discussed some of the normative and political weaknesses associated with the test. I presented a case for an alternative approach that places duties of justice at the centre of the state’s burden to justify limitations on the freedom of expression. This alternative approach does not completely discard the proportionality test; it instead attempts to address some of the weaknesses of the test. I termed this alternative approach a ‘duty-based justificatory approach’ for certain methodological and ethical reasons. I argued that, when individual conduct concerns the freedom of expression, the state’s burden to justify the restriction on such conduct must involve demonstrating that the individual concerned owes others a duty of justice to refrain from engaging in the conduct.

Once we fully appreciate the value of the freedom of expression, we begin to see the sense in requiring the state to demonstrate a duty of justice when justifying limitations on the freedom of expression. Such an approach is normatively valuable, as it better sustains the normative primacy and peremptory value of the freedom of expression. The state would need to compellingly demonstrate that the various interests that compete with the individual’s interest in the freedom of expression are sufficient reason to impose a duty of justice on the individual concerned. It would have to rely on public reason to demonstrate such a duty, and it would ultimately have to prove that the individual concerned has a direct responsibility for any harmful consequences emanating from the conduct in question. Apart from such normative value, we have seen that a duty-based approach can be politically valuable. It places a clearer burden on the state to demonstrate how the individual concerned directly owes a duty of justice to others to refrain from engaging in the impugned conduct. The state is accordingly constrained from advancing certain majoritarian interests, or offloading its positive obligations by limiting the individual’s freedom of expression.

There appears to be a compelling normative and political case to place duties of justice at the centre of the state’s burden to justify limitations on the freedom of expression. Such an approach would not radically depart from the proportionality test, which retains its place as a ‘core doctrinal tool’ (Möller 2014 , p. 31) to determine the permissibility of limitations on the freedom of expression. The alternative approach I have proposed instead adds crucial scaffolding to the typical proportionality test. It sets out to reinforce the state’s burden to confine itself to the realm of public reason, and insists that the state demonstrates that the individual concerned owes others a duty of justice to refrain from the impugned conduct. Such an approach would enhance the state’s justificatory burden when it seeks to limit one of our most cherished values: the freedom of expression.

Wesley Hohfeld’s reference to liberty (what he called ‘privilege’) appears to be analogous to Isaiah Berlin’s conception of ‘negative liberty’, which he describes as the area within which a person ‘is or should be left to do or be what he is able to do or be, without interference’ (Berlin 1969 , p. 2)

‘Lexical priority’ typically refers to the order in which values or principles are prioritised. Rawls argued that basic liberties, such as the freedom of expression, had lexical priority over other interests.

The Kalimah in question is the specific declaration: ‘There is none worthy of worship except Allah and Muhammad is the Messenger of Allah’.

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Acknowledgements

The author wishes to thank Dr Nazila Ghanea, Dr Godfrey Gunatilleke, Tom Kohavi, Shamara Wettimuny, and Wijith de Chickera for their generous time in reviewing previous versions of this article, and for their valuable feedback.

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Gunatilleke, G. Justifying Limitations on the Freedom of Expression. Hum Rights Rev 22 , 91–108 (2021). https://doi.org/10.1007/s12142-020-00608-8

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15.4 Censorship and Freedom of Speech

Learning objectives.

• Explain the FCC’s process of classifying material as indecent, obscene, or profane.
• Describe how the Hay’s Code affected 20th-century American mass media.

Figure 15.3

Attempts to censor material, such as banning books, typically attract a great deal of controversy and debate.

Timberland Regional Library – Banned Books Display At The Lacey Library – CC BY-NC-ND 2.0.

To fully understand the issues of censorship and freedom of speech and how they apply to modern media, we must first explore the terms themselves. Censorship is defined as suppressing or removing anything deemed objectionable. A common, everyday example can be found on the radio or television, where potentially offensive words are “bleeped” out. More controversial is censorship at a political or religious level. If you’ve ever been banned from reading a book in school, or watched a “clean” version of a movie on an airplane, you’ve experienced censorship.

Much as media legislation can be controversial due to First Amendment protections, censorship in the media is often hotly debated. The First Amendment states that “Congress shall make no law…abridging the freedom of speech, or of the press (Case Summaries).” Under this definition, the term “speech” extends to a broader sense of “expression,” meaning verbal, nonverbal, visual, or symbolic expression. Historically, many individuals have cited the First Amendment when protesting FCC decisions to censor certain media products or programs. However, what many people do not realize is that U.S. law establishes several exceptions to free speech, including defamation, hate speech, breach of the peace, incitement to crime, sedition, and obscenity.

Classifying Material as Indecent, Obscene, or Profane

To comply with U.S. law, the FCC prohibits broadcasters from airing obscene programming. The FCC decides whether or not material is obscene by using a three-prong test.

Obscene material:

• causes the average person to have lustful or sexual thoughts;
• depicts lawfully offensive sexual conduct; and
• lacks literary, artistic, political, or scientific value.

Material meeting all of these criteria is officially considered obscene and usually applies to hard-core pornography (Federal Communications Commission). “Indecent” material, on the other hand, is protected by the First Amendment and cannot be banned entirely.

Indecent material:

• contains graphic sexual or excretory depictions;
• dwells at length on depictions of sexual or excretory organs; and
• is used simply to shock or arouse an audience.

Material deemed indecent cannot be broadcast between the hours of 6 a.m. and 10 p.m., to make it less likely that children will be exposed to it (Federal Communications Commission).

These classifications symbolize the media’s long struggle with what is considered appropriate and inappropriate material. Despite the existence of the guidelines, however, the process of categorizing materials is a long and arduous one.

There is a formalized process for deciding what material falls into which category. First, the FCC relies on television audiences to alert the agency of potentially controversial material that may require classification. The commission asks the public to file a complaint via letter, e-mail, fax, telephone, or the agency’s website, including the station, the community, and the date and time of the broadcast. The complaint should “contain enough detail about the material broadcast that the FCC can understand the exact words and language used (Federal Communications Commission).” Citizens are also allowed to submit tapes or transcripts of the aired material. Upon receiving a complaint, the FCC logs it in a database, which a staff member then accesses to perform an initial review. If necessary, the agency may contact either the station licensee or the individual who filed the complaint for further information.

Once the FCC has conducted a thorough investigation, it determines a final classification for the material. In the case of profane or indecent material, the agency may take further actions, including possibly fining the network or station (Federal Communications Commission). If the material is classified as obscene, the FCC will instead refer the matter to the U.S. Department of Justice, which has the authority to criminally prosecute the media outlet. If convicted in court, violators can be subject to criminal fines and/or imprisonment (Federal Communications Commission).

Each year, the FCC receives thousands of complaints regarding obscene, indecent, or profane programming. While the agency ultimately defines most programs cited in the complaints as appropriate, many complaints require in-depth investigation and may result in fines called notices of apparent liability (NAL) or federal investigation.

Table 15.1 FCC Indecency Complaints and NALs: 2000–2005

Violence and Sex: Taboos in Entertainment

Although popular memory thinks of old black-and-white movies as tame or sanitized, many early filmmakers filled their movies with sexual or violent content. Edwin S. Porter’s 1903 silent film The Great Train Robbery , for example, is known for expressing “the appealing, deeply embedded nature of violence in the frontier experience and the American civilizing process,” and showcases “the rather spontaneous way that the attendant violence appears in the earliest developments of cinema (Film Reference).” The film ends with an image of a gunman firing a revolver directly at the camera, demonstrating that cinema’s fascination with violence was present even 100 years ago.

Porter was not the only U.S. filmmaker working during the early years of cinema to employ graphic violence. Films such as Intolerance (1916) and The Birth of a Nation (1915) are notorious for their overt portrayals of violent activities. The director of both films, D. W. Griffith, intentionally portrayed content graphically because he “believed that the portrayal of violence must be uncompromised to show its consequences for humanity (Film Reference).”

Although audiences responded eagerly to the new medium of film, some naysayers believed that Hollywood films and their associated hedonistic culture was a negative moral influence. As you read in Chapter 8 “Movies” , this changed during the 1930s with the implementation of the Hays Code. Formally termed the Motion Picture Production Code of 1930, the code is popularly known by the name of its author, Will Hays, the chairman of the industry’s self-regulatory Motion Picture Producers and Distributors Association (MPPDA), which was founded in 1922 to “police all in-house productions (Film Reference).” Created to forestall what was perceived to be looming governmental control over the industry, the Hays Code was, essentially, Hollywood self-censorship. The code displayed the motion picture industry’s commitment to the public, stating:

Motion picture producers recognize the high trust and confidence which have been placed in them by the people of the world and which have made motion pictures a universal form of entertainment…. Hence, though regarding motion pictures primarily as entertainment without any explicit purposes of teaching or propaganda, they know that the motion picture within its own field of entertainment may be directly responsible for spiritual or moral progress, for higher types of social life, and for much correct thinking (Arts Reformation).

Among other requirements, the Hays Code enacted strict guidelines on the portrayal of violence. Crimes such as murder, theft, robbery, safecracking, and “dynamiting of trains, mines, buildings, etc.” could not be presented in detail (Arts Reformation). The code also addressed the portrayals of sex, saying that “the sanctity of the institution of marriage and the home shall be upheld. Pictures shall not infer that low forms of sex relationship are the accepted or common thing (Arts Reformation).”

Figure 15.4

As the chairman of the Motion Picture Producers and Distributors Association, Will Hays oversaw the creation of the industry’s self-censoring Hays Code.

Wikimedia Commons – public domain.

As television grew in popularity during the mid-1900s, the strict code placed on the film industry spread to other forms of visual media. Many early sitcoms, for example, showed married couples sleeping in separate twin beds to avoid suggesting sexual relations.

By the end of the 1940s, the MPPDA had begun to relax the rigid regulations of the Hays Code. Propelled by the changing moral standards of the 1950s and 1960s, this led to a gradual reintroduction of violence and sex into mass media.

Ratings Systems

As filmmakers began pushing the boundaries of acceptable visual content, the Hollywood studio industry scrambled to create a system to ensure appropriate audiences for films. In 1968, the successor of the MPPDA, the Motion Picture Association of America (MPAA), established the familiar film ratings system to help alert potential audiences to the type of content they could expect from a production.

Film Ratings

Although the ratings system changed slightly in its early years, by 1972 it seemed that the MPAA had settled on its ratings. These ratings consisted of G (general audiences), PG (parental guidance suggested), R (restricted to ages 17 or up unless accompanied by a parent), and X (completely restricted to ages 17 and up). The system worked until 1984, when several major battles took place over controversial material. During that year, the highly popular films Indiana Jones and the Temple of Doom and Gremlins both premiered with a PG rating. Both films—and subsequently the MPAA—received criticism for the explicit violence presented on screen, which many viewers considered too intense for the relatively mild PG rating. In response to the complaints, the MPAA introduced the PG-13 rating to indicate that some material may be inappropriate for children under the age of 13.

Another change came to the ratings system in 1990, with the introduction of the NC-17 rating. Carrying the same restrictions as the existing X rating, the new designation came at the behest of the film industry to distinguish mature films from pornographic ones. Despite the arguably milder format of the rating’s name, many filmmakers find it too strict in practice; receiving an NC-17 rating often leads to a lack of promotion or distribution because numerous movie theaters and rental outlets refuse to carry films with this rating.

Television and Video Game Ratings

Regardless of these criticisms, most audience members find the rating system helpful, particularly when determining what is appropriate for children. The adoption of industry ratings for television programs and video games reflects the success of the film ratings system. During the 1990s, for example, the broadcasting industry introduced a voluntary rating system not unlike that used for films to accompany all TV shows. These ratings are displayed on screen during the first 15 seconds of a program and include TV-Y (all children), TV-Y7 (children ages 7 and up), TV-Y7-FV (older children—fantasy violence), TV-G (general audience), TV-PG (parental guidance suggested), TV-14 (parents strongly cautioned), and TV-MA (mature audiences only).

Table 15.2 Television Ratings System

Source: http://www.tvguidelines.org/ratings.htm

At about the same time that television ratings appeared, the Entertainment Software Rating Board was established to provide ratings on video games. Video game ratings include EC (early childhood), E (everyone), E 10+ (ages 10 and older), T (teen), M (mature), and AO (adults only).

Table 15.3 Video Game Ratings System

Source: http://www.esrb.org/ratings/ratings_guide.jsp

Even with these ratings, the video game industry has long endured criticism over violence and sex in video games. One of the top-selling video game series in the world, Grand Theft Auto , is highly controversial because players have the option to solicit prostitution or murder civilians (Media Awareness). In 2010, a report claimed that “38 percent of the female characters in video games are scantily clad, 23 percent baring breasts or cleavage, 31 percent exposing thighs, another 31 percent exposing stomachs or midriffs, and 15 percent baring their behinds (Media Awareness).” Despite multiple lawsuits, some video game creators stand by their decisions to place graphic displays of violence and sex in their games on the grounds of freedom of speech.

Key Takeaways

• The U.S. Government devised the three-prong test to determine if material can be considered “obscene.” The FCC applies these guidelines to determine whether broadcast content can be classified as profane, indecent, or obscene.
• Established during the 1930s, the Hays Code placed strict regulations on film, requiring that filmmakers avoid portraying violence and sex in films.
• After the decline of the Hays Code during the 1960s, the MPAA introduced a self-policed film ratings system. This system later inspired similar ratings for television and video game content.

Look over the MPAA’s explanation of each film rating online at http://www.mpaa.org/ratings/what-each-rating-means . View a film with these requirements in mind and think about how the rating was selected. Then answer the following short-answer questions. Each response should be a minimum of one paragraph.

• Would this material be considered “obscene” under the Hays Code criteria? Would it be considered obscene under the FCC’s three-prong test? Explain why or why not. How would the film be different if it were released in accordance to the guidelines of the Hays Code?
• Do you agree with the rating your chosen film was given? Why or why not?

Arts Reformation, “The Motion Picture Production Code of 1930 (Hays Code),” ArtsReformation, http://www.artsreformation.com/a001/hays-code.html .

Case Summaries, “First Amendment—Religion and Expression,” http://caselaw.lp.findlaw.com/data/constitution/amendment01/ .

Federal Communications Commission, “Obscenity, Indecency & Profanity: Frequently Asked Questions,” http://www.fcc.gov/eb/oip/FAQ.html .

Film Reference, “Violence,” Film Reference, http://www.filmreference.com/encyclopedia/Romantic-Comedy-Yugoslavia/Violence-BEGINNINGS.html .

Media Awareness, Media Issues, “Sex and Relationships in the Media,” http://www.media-awareness.ca/english/issues/stereotyping/women_and_girls/women_sex.cfm .

Media Awareness, Media Issues, “Violence in Media Entertainment,” http://www.media-awareness.ca/english/issues/violence/violence_entertainment.cfm .

Understanding Media and Culture Copyright © 2016 by University of Minnesota is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License , except where otherwise noted.

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(page 96) p. 96 Conclusion: the future of free speech

• Published: February 2009
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The Conclusion looks to how the free speech debate will continue in the future. So long as we continue to recognise free speech's importance to democracy, then the hope is that we feel braver about resisting pressure to censor ourselves for fear of offending someone. Sometimes we do need to give greater weight to other considerations besides freedom of expression. We must be clear, though, on why the protection of someone is more important than free speech and why we need to draw a line. Toleration of free speech may come by the impossibility of censoring across lines of communication such as the Internet, but this is not certain.

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

Updated on 21.05.2024 by Una Glatz Knowledge is power. Your contribution counts.

What is freedom of speech?

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

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

We all deserve to have our say

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

Free speech gives us our voice

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

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

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

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

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

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

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

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

1. It battles for the truth

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

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

2. It makes everyone more accountable

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

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

3. Active participation of citizens

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

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

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

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

4. Promotes equal treatment of minorities

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

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

Speaking up starts with getting informed.

5. necessary for change and innovation.

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

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

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

How is freedom of speech being threatened?

1.government.

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

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

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

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

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

3.Attacks on journalists, CSOs and Whistleblowers

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

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

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

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

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

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

5. Self-censorship

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

How to protect freedom of speech?

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

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

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• Essay on Freedom of Speech in English Free PDF download

Download Important English Essay on the Topic - Freedom of Speech Free PDF from Vedantu

One of the fundamental rights of the citizens of India is ‘Freedom of Speech’. This is allowed to the citizens by a lot of countries to empower the citizens to share their own thoughts and views. This freedom of speech essay is for students of class 5 and above. The language used in this essay is plain and simple for a better understanding of the students. This freedom of speech essay example will help the students write a paragraph on freedom of speech in their own words easily.

Long Essay on Freedom of Speech

The phrase “Freedom of Speech” has been misinterpreted by some individuals who either do not actually understand the meaning of the phrase completely or have a totally different agenda in mind altogether. Every democratic country gives its citizens this freedom. The same is guaranteed by the Constitution of India too. Irrespective of your gender, religion, caste, or creed, you are guaranteed that freedom as an Indian. The values of democracy in a country are defined by this guaranteed fundamental freedom. The freedom to practice any religion, the freedom to express opinions and disagreeing viewpoints without hurting the sentiments or causing violence is what India is essentially made up of.

Indians stand out for their secularism and for spreading democratic values across the world. Thus, to save and celebrate democracy, enforcing freedom of speech in India becomes a necessity. Freedom of speech is not only about the fundamental rights, it’s also a fundamental duty to be done by every citizen rightfully so as to save the essence of democracy.

In developed democracies like the US, UK, Germany or France, we see a “freedom of speech” that is different from what we see in authoritarian countries like China, Malaysia or Syria and failed democratic countries like Pakistan or Rwanda. These governance systems failed because they lacked freedom of speech. Freedom of press gives us a yardstick to gauge the freedom of speech in a country. A healthy, liberal and strong democracy is reflected by a strong media presence in a country, since they are supposed to be the voice of the common people. A democracy that has a stomach for criticisms and disagreements is taken in a positive way. 

Some governments get very hostile when faced with any form of criticism and so they try to oppress any voices that might stand against them. This becomes a dangerous model of governance for any country. For example, India has more than hundred and thirty crores of population now and we can be sure that every individual will not have the same thought process and same views and opinions about one thing. A true democracy is made by the difference of opinions and the respect people have for each other in the team that is responsible for making the policies.

Before making a choice, all aspects and angles of the topic should be taken into consideration. A good democracy will involve all the people - supporters and critics alike, before formulating a policy, but a bad one will sideline its critics, and force authoritarian and unilateral policies upon all of the citizens.

Sedition law, a British-era law, was a weapon that was used in India to stifle criticism and curb freedom of speech during the pre-independence era. Through section 124A of Indian Penal Code, the law states that if a person with his words, written or spoken, brings hatred, contempt or excites tension towards a government or an individual can be fined or jailed or fined and jailed both. This law was used by the Britishers to stifle the freedom fighters. Today it is being used by the political parties to silence criticism and as a result is harming the democratic values of the nation. 

Many laws in India also protect the people in rightfully exercising their freedom of expression but the implementation of these laws is proving to be a challenge. Freedom of speech cannot be absolute. In the name of freedom of speech, hatred, tensions, bigotry and violence too cannot be caused in the society. It will then become ironically wrong to allow freedom of speech in the first place. Freedom of speech and expression should not become the reason for chaos and anarchy in a nation. Freedom of speech was stifled when article 370 got revoked in Kashmir. Not that the government was trying to go against the democratic values, but they had to prevent the spread of fake news, terrorism or any type of communal tensions in those areas.

Short Essay on Freedom of Speech

Freedom of speech allows the people of our country to express themselves, and share their ideas, views and opinions openly. As a result, the public and the media can comment on any political activity and also express their dissent towards anything they think is not appropriate.

Various other countries too provide freedom of speech to their citizens but they have certain limitations. Different countries have different restrictions on their freedom of speech. Some countries also do not allow this fundamental right at all and the best example being North Korea. There, the media or the public are not allowed to speak against the government. It becomes a punishable offence to criticize the government or the ministers or the political parties.

Key Highlights of the Essay - Freedom of Speech

Every democratic country gives its citizens the Freedom of Speech so as to enable the citizens to freely express their individual views, ideas and concerns. The freedom to be able to practice any religion, to be able to express individual secularism and for spreading democratic values across the world. In order to be able to save and to celebrate democracy, enforcing freedom of speech in India Is essential. Freedom of speech  about fundamental rights is also a fundamental duty of citizens in order to save the essence of democracy.  In a country, a healthy, liberal and strong democracy is always  reflected and can be seen through a strong media presence, as the media are the voice of the common people.  When faced with any form of criticism, we see some governments get very hostile,  and they  try to oppress  and stop any kind of  voices that might go against them. This is not favorable for any country. 

A good democracy involves all the people - all their various  supporters and critics alike, before they begin formulating any policies. India had the Sedition law, a British-era law that is used to stifle criticism and curb freedom of speech during the pre-independence era. The section 124A of Indian Penal Code, this law of sedition stated that if a person with his words, written or spoken, brings hatred, contempt or excites tension towards a government or an individual, then he can be fined or jailed or both. Using  freedom of speech, people spread hatred, unnecessary tensions, bigotry and some amount of violence too in the society. Ironically  in such cases, it will be wrong to allow freedom of speech. The reasons for chaos and anarchy in a nation should not be due to  Freedom of speech and expression. This law was stifled when article 370 got revoked in Kashmir, in order to prevent the spread of fake news, terrorism or any type of communal tensions in those areas.

Freedom of speech gives people of our country, the freedom to express themselves, to be able to share their ideas, views and opinions openly, where the public and the media can express and comment on any political activities and can also be able to express their dissent towards anything they think is not appropriate. Different countries have different restrictions on their freedom of speech. And it is not proper to comment on that .In Fact, there are some countries which does not allow this fundamental right , for example, North Korea where neither the media nor the public have any right to speak against or even for the government and it is a punishable offense to openly criticize the government or the or anyone in particular.

While freedom of speech lets the society grow it could have certain negative outcomes. It should not be used to disrespect or instigate others. The media too should not misuse it. We, the people of this nation, should act responsibly towards utilizing its freedom of speech and expression. Lucky we are to be citizens of India. It’s a nation that respects all its citizens and gives them the rights needed for their development and growth.

A fundamental right of every citizen of India, the  ‘Freedom of Speech’ allows citizens to share their individual thoughts and views.

FAQs on Essay on Freedom of Speech in English Free PDF download

1. Mention five lines for Freedom of Speech Essay?

i) A fundamental right that is guaranteed to citizens of a country to be able to express their opinions and points of view without any kind of censorship.

ii) A democracy’s health depends on the extent of freedom of expression of all its citizens.

iii) Freedom of speech is never absolute in nature.

iv) New Zealand, USA or UK rank  high in terms of freedom of speech by its citizens.

v) A fundamental right in the Indian constitution is the Freedom of Speech and Expression.

2. Explain Freedom of Speech?

A fundamental right of every citizen of India, Freedom Of Speech allows every citizen the freedom and the right to express all their views, concerns, ideas and issues relating to anything about their country. Freedom of Speech is never actual in nature  and has its limits too. It cannot be used for any kind of illegal purposes.The health of a democracy depends on the extent of freedom of expression of its citizens.

3. What happens when there is no Freedom of Speech?

A country will become a police and military state with no democratic and humanitarian values in it if there is no freedom of speech. Freedom of Speech is a fundamental right for all citizens, and a failure to not being able to express one’s ideas, beliefs, and thoughts will result in a non authoritarian and non democratic country.  Failure to have freedom of speech in a country would mean that the rulers or the governments of those countries have no respect for its citizens.

4. Where can we get study material related to essay writing ?

It is important to practice some of the important questions in order to do well. Vedantu.com offers these important questions along with answers that have been formulated in a well structured, well researched, and easy to understand manner. Various essay writing topics, letter writing samples, comprehension passages are all available at the online portals today. Practicing and studying with the help of these enable the students to measure their level of proficiency, and also allows them to understand the difficult questions with ease. 

You can avail all the well-researched and good quality chapters, sample papers, syllabus on various topics from the website of Vedantu and its mobile application available on the play store. 

5. Why should students choose Vedantu for an essay on the topic 'Freedom of Speech’?

Essay writing is important for students   as it helps them increase their brain and vocabulary power. Today it is important to be able to practice some important topics, samples and questions to be able to score well in the exams. Vedantu.com offers these important questions along with answers that have been formulated in a well structured, well researched, and easy to understand manner. The NCERT and other study material along with their explanations are very easily accessible from Vedantu.com and can be downloaded too. Practicing with the help of these questions along with the solutions enables the students to measure their level of proficiency, and also allows them to understand the difficult questions with ease. 

6. What is Freedom of Speech?

Freedom of speech is the ability to express our opinions without any fear.

7. Which country allows the highest level of Freedom of Speech to its citizens?

The USA is at the highest with a score of 5.73.

8. Is Freedom of Speech absolute?

No, freedom of speech cannot be absolute. It has limitations.