What are the limits of free speech?

7 scholars and legal experts dissect what you can and can't say in America.

NADINE STROSSEN: There is absolutely no doubt that speech can do an infinite amount of harm as well as an infinite amount of good. The reason why censorship is bad is precisely because speech is so powerful. And with that power, we, human beings can exert it, either to great good or to great ill. Now, the question is, what does more harm: Trusting our fellow citizens on the whole to minimize the adverse impact, adverse potential impact of speech or trusting government to pick and choose which potentially dangerous harmful speech should be censored? What we've seen throughout history and around the world, not surprisingly, is whoever exercises censorship power does it in a way to perpetuate their own power and to disproportionately silence the voice of their critics. Freedom of speech really is the bedrock of every other right and really, almost everything positive in our society could not be achieved without that essential bedrock.

NICHOLAS CHRISTAKIS: There's a difference between defending an important principle and advocating for the implications of that principle. Let me give you a couple of examples. One example is defending the freedom of expression, even though you disagree with what someone might say when they exercise that freedom. So for example, I might defend your right to speak. I might defend your right to express yourself without fear of losing your job, for example. But I might still not agree with whatever it is that you're going to say. So, you say something I don't like. I don't like it, I respond to it. That's the proper way to handle it. That is to say, we defend the right of people to express themselves even though we acknowledge that the outcome of that might not be what we agree with. So the famous saying of course, is I don't agree with what it is that you want to say but I will defend your right to say it to the death. You test your ideas by arguing with people who disagree with you. And actually, if you're good at it, you even learn to enjoy it.

JOSH LIEB: I think legally, you should be able to say anything you want. Then again, and I think if you're seeing that someone is booked on a TV show that you don't agree with, I think it's not against free speech. You're not violating anyone's free speech to say, I don't wanna be in a program with that person. Or if you're a publishing house that's publishing a book by someone you don't like. There's no violation of free speech, you're not impinging on anyone to say, I don't care to be associated with that person. That's fine. I don't like hate speech laws, I'm vehemently against them. I think they are as anti-American and anti-Democratic as anything can be. And I don't like the idea of criminalizing thought no matter how hateful or stupid the thought is. It sounds like something from 1984. I don't think we make the hate go away by not saying it. You know, I'm basically I'm Lenny Bruce in "Harry Potter," I will say Voldemort's name. It doesn't make Voldemort go away to not say that fucking word. I always curse too much on these things, I'm sorry. You know, the road to hell is paved with great intentions. Like I get it, but it's a bad path for us. And the problem is things are so chaotic now. Things are at such a high tenor. People are so filled with vitriol that it's very possible that, just to get everyone to cool down, this is when this kind of stuff can get through, but that would not be American.

FLOYD ABRAMS: There've always been boundaries on freedom of speech and of the press. At different times they've been interpreted more or less strictly. We've always had libel law, for example. People have always been able to sue when false things were said about them, which harmed them. However, in 1964, the Supreme Court, in one of its greatest opinions, New York Times against Sullivan basically decided that there was, in the interest of protecting freedom of speech, a need to expand beyond old law. Like when I was in law school, for example, we were taught libelous material isn't protected by the First Amendment. Well, that's still true, but what the court said in 1964 was in defining what's libelous, we have to take into account the First Amendment. And in particular, when you speak about a public person, a public figure, a public official, there can't be a winning libel suit against you, unless you basically lied, said something you knew was false or you suspected it wasn't true. That's just one example. In the area of National Security, we have some statutes which make it a crime to publish details about building atomic weapons and in the area of National Security the government has sought to, and I would say has established the proposition that if they can get to court with respect to material which would really, really cripple the country in the sense of making it impossible for the country and its people to be safe from imminent harm caused as a result of the speech itself. Why then the Supreme Court has said that there can be a prior restraint, an injunction against the speech. But not much. I mean, America has always been the country in the world with more protection for speech, more protection for religion. Those two areas in particular. More protection for freedom of the press, which together with freedom of speech have a sort of a common body of law than any country in the history of the world. That's not to say we haven't had real and real big First Amendment problems sometimes. And First Amendment deprivations sometimes. But taken as a whole, it's been really an astonishing, a breathtaking degree of personal freedom for people, for organizations, for institutions to have their say.

STROSSEN: Most people falsely assume one of two things which are opposite from each other and yet they are equally wrong. On the one hand, many people assume that freedom of speech is absolute, that there can be no restrictions or limitations whatsoever. On the other hand, too many people think that there's no protection for certain kinds of unpopular speech, such as so-called "hate speech" or "pornography" or terrorism speech, to name a few that are constantly attacked. The First Amendment, Freedom of Expression, rests upon two fundamental principles. One prescribes when government may not suppress speech and the other explains when government may restrict speech, in appropriately limited circumstances.

So first, the non censorship principle is often called the content neutrality or viewpoint neutrality principle. Government may never suppress speech solely because of its content, its message, its viewpoint or ideas. No matter how feared or despised or hated or hateful that idea, that content may be perceived as, even as by the vast majority of the community that is never enough to justify censoring it. If we disagree with an idea, if we despise it, we should answer it back, not suppress it. If however you get beyond the content of the speech, its message, and look at its overall context, then government may restrict that speech consistent with what is usually called the emergency principle. If in a particular context, that speech directly causes certain serious, imminent, specific harm. And the only way to avert the harm is by suppressing the speech.

Now, the United States Supreme Court has created a recognized several categories of speech that satisfy that emergency principle. For example, intentional incitement of imminent violence, where the violence is likely to actually happen imminently. Or targeted bullying or harassment that is directly targeted at a particular individual or small group of individuals, and directly interferes with their freedom of movement. Another example that satisfies the emergency principle is what lawyers call a genuine threat or a true threat. If the speaker is directly targeting a small specific audience and intends to instill a reasonable fear on the part of that audience that they are gonna be subject to some kind of violence, then the speech can and should be punished.

MICHAEL SHERMER: I'll tell you how far I go in defending free speech. I would defend the free speech of Holocaust deniers. My example of this is David Irvine, who is the most prominent of the Holocaust deniers. I've known him a long time since the 1990s and he's definitely the smartest of the bunch. And I think he's absolutely wrong and I've confronted him with what I think why I think he's wrong. It's apparent in his trial, he's also pretty antisemitic or at least he lies for Hitler, but that's beside the point. The idea that he went to Austria to give a talk and was arrested at the airport. You know, they scan your passport and the name pops up and they come and arrest him. And he was tried and then convicted and put in jail and he didn't even give a speech, he was just thinking about giving a speech. So that is the very definition of a thought crime. Do we really wanna go down that road? I mean, that's what countries like North Korea do. That's what like the Soviet Union did under Stalin. You know, arrest people for thought crimes. This is a terrible way to go. And I even went so far as to write a letter to the judge in that case on behalf of David Irving, even though I completely disagree with him, because I just find this abhorrent.

STROSSEN: People will often say to me as somebody who is Jewish and the daughter of a Holocaust survivor, who barely survived the Buchenwald concentration camp, how can I of all people defend the Nazis? And I always say, I'm not defending the Nazis, I'm defending freedom of speech as an inviolable, indivisible principle that is only gonna remain strong if we continue to respect that bedrock viewpoint neutrality principle, denying government the power to suppress an idea merely because in one community that idea is deemed to be unpopular or hateful or hated. Because I know that in many communities in this country ideas that I cherish as a civil libertarian, as a human rights champion, those ideas are seen as dangerous and are subject to censorship. So I'm not defending the Nazis, I'm defending a principle that is especially important for those of us who want to have the freedom to raise our voices, to protest the Nazis and everything they stand for.

ALICE DREGER: What's happening on a lot of university campuses is the notion you come with your preexisting beliefs about your identity, about the world and no one's supposed to question that, and I think that's very problematic. You know, for example, people say, well, we don't want right-wing people on campus. I do, I want everybody on campus, I want everybody having the same educational opportunities and I want the opportunity to actually have real conversations about different points of view. Getting them out in the open, airing them, being able to have conversations, arguments, thinking about data, thinking about evidence, thinking about histories of justice. It allows us to have those conversations in a way that I think has integrity and honesty and gets us somewhere. So if people have the attitude, you know, some people are allowed on campus, some people are not, some people are allowed to speak, some people are not. That doesn't really get us forward. Certainly it is the case we should not allow people to openly abuse each other verbally in ways that are profound. So for example, using the N word, for example. But beyond that, I think we have to have a lot of generosity in terms of allowing people to air ideas and giving everybody time to do that, so that we can have meaningful education.

STROSSEN: Those who advocate censorship never examine whether censorship is going to be effective in addressing, redressing, reducing the harm. They never address whether censorship to the contrary is going to do more harm than good. And every situation that I'm aware of, censorship actually ends up being ineffective in addressing the harms at stake at best, or counterproductive at worst. So disinformation, well, are we going to say that empowering Mark Zuckerberg and the other titans of Silicon Valley to decide that certain speech is untrue, is that actually going to solve our political problems? I think to the contrary, that is as threatening to democracy as it is to individual freedom. Likewise, with respect to so-called "hate speech" that conveys discriminatory ideas against traditionally marginalized or excluded groups. Every hate speech law around the world to this day is disproportionally enforced consistently against the very minority groups who are hoped to be protected. And we shouldn't be surprised at that. Once you have these discretionary standards. What is hate speech? What is disinformation? No two individuals can agree on such inherently subjective concepts.

SHERMER: We are wrong about so much of what we believe, that the only way to find out if you're on the right track or you've gone off the rails is to actually talk to other people. Even if you're completely right, by listening to what somebody else says, you have an opportunity to strengthen your own position. As John Stuart Mill said in his foundational text, 1859 "On Liberty", "he who knows only his own position doesn't even know that." So for example, most of my students that I teach they're pretty liberal, they're pro-choice on the abortion issue. But when I asked them to articulate the pro-life position, which, you know, over half of Americans take, you know, they mostly can't do it. So I tell them that you don't really understand pro-choice arguments if you don't understand the pro-life arguments, you gotta have both sides, right? Even if the pro choice position is absolutely the right one you're still not really understanding it until you understand the other side. Then there's the fact that you might be wrong, partially wrong or completely wrong. And again, the only way to find out is by listening to what other people say. And then there's the right, not just of the speaker to speak, but of the listeners to listen. So when protesters shut down talks at say, colleges and universities when a conservative comes to speak, it's not just the right of the speaker to speak, or, you know, the administrators or deans who brought that person in, but the audience. There might be a lot of students that wanna hear what this person has to say. And even if they are completely liberal and totally opposed to this conservative's ideas, they still have a right to hear if they want to. And so when protestors get these speakers de-platformed, that is, they're not even allowed to speak, they don't even come to campus or if they do come and they try to speak and then they're shouted down, it's called heckler's veto. That's violating the rights of listeners, not just the speakers, right?

JON ZIMMERMAN: I am a Liberal Democrat, In fact, I'm almost a caricature of a Liberal Democratic. My father was in the Peace Corps, I was in the Peace Corps. I'm Jewish, I have a PhD, I'm like a cartoon, all right? But, part of my liberalism is an absolute commitment to free speech. And one of the things I find most upsetting, both at the partisan and at the intellectual level, is the way that free speech has now been cast as a kind of conservative value. I find this profoundly ahistorical, because all of the great warriors for social justice in the past, with names like Frederick Douglass and W.E.B. Du Bois and Martin Luther King, they were absolutists on free speech, because they understood that it was the people at the bottom that needed free speech the most, 'cause it was all they had. So I had a really interesting experience that for me kind of crystallized this change and why it's so important. I've hosted Mary Beth Tinker in my class at Penn. Mary Beth Tinker was in middle school when she and other family members wore these black armbands to school in Des Moines to protest the Vietnam War. They were sent home from school and this eventually became a very important test case called Tinker v. Des Moines. Ultimately the Supreme Court in Tinker v. Des Moines upheld their right to do that. And it was in that case that Justice Fortas very famously wrote that "students and teachers don't shed their constitutional rights at the schoolhouse gate." Well, Mary Beth Tinker is now a 65-year-old person and she came to my class to talk about this case and free speech. And the students said to her, they said, "Listen, Ms. Tinker, you were fighting the good fight, you were fighting the Vietnam War. Milo Yiannopoulos and Ann Coulter and Ben Shapiro, they're not fighting the good fight, they're just hurting people. You know, they're anti-trans, they're anti-gay, they're anti-Black, they are just haters. They injure people. Why should they have the privilege of speaking?" Mary Beth Tinker wasn't having it. Here's what she said. She said, "Listen, in the school that I attended in Des Moines, there were kids who had fathers and brothers that were dying in Southeast Asia. Do you think they weren't hurt by this snot-nosed kid wearing the symbol saying that their dad or brother was dying for a lie? You don't think that hurt them? Wake up! It hurt them, speech hurts. But if that's gonna be your rubric, if that's gonna be your definition, forget my armband because I was hurting people too. That's what speech does." Then they went on to say, "Well, look, this free speech thing, this is just an abstraction, it's not really about rights, it's just about power, who has power, who has the power to talk?" She's not having that either. She says, "Listen, I was a 13-year-old kid. The only power I had was my speech. That was it. And speech over time has been a weapon of the powerless. If you go ahead and sensor it, eventually it's gonna be turned against the people with the least power, and it may be turned against you."

  • The free speech debate typically happens at either end of a spectrum — people believe they should be able to say whatever they want, or they believe that certain things (e.g. hate speech) should be censored. Who is right, and who gets to decide?
  • While they acknowledge that speech is a powerful weapon that can cause infinite good and infinite harm, former ACLU president Nadine Strossen, sociologist Nicholas Christakis, author and skeptic Michael Shermer, and others agree that the principle should be defended for everyone, not just for those who share our views. "I'm not defending the Nazis," says Strossen, "I'm defending a principle that is especially important for those of us who want to have the freedom to raise our voices, to protest the Nazis and everything they stand for."
  • However, as Strossen and attorney Floyd Abrams point out, there have always been boundaries when it comes to free speech and the First Amendment. There are rules, established by the Supreme Court, meant to ensure that speech is not used to inflict "imminent, specific harm" on others.

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