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First Amendment

By: History.com Editors

Updated: July 27, 2023 | Original: December 4, 2017

The First Amendment to the U.S. Constitution protects the freedom of speech, religion and the press. It also protects the right to peaceful protest and to petition the government. The amendment was adopted in 1791 along with nine other amendments that make up the Bill of Rights—a written document protecting civil liberties under U.S. law. The meaning of the First Amendment has been the subject of continuing interpretation and dispute over the years. Landmark Supreme Court cases have dealt with the right of citizens to protest U.S. involvement in foreign wars, flag burning and the publication of classified government documents.

Bill of Rights

During the summer of 1787, a group of politicians, including James Madison and Alexander Hamilton , gathered in Philadelphia to draft a new U.S. Constitution .

Antifederalists, led by the first governor of Virginia , Patrick Henry , opposed the ratification of the Constitution. They felt the new constitution gave the federal government too much power at the expense of the states. They further argued that the Constitution lacked protections for people’s individual rights.

The debate over whether to ratify the Constitution in several states hinged on the adoption of a Bill of Rights that would safeguard basic civil rights under the law. Fearing defeat, pro-constitution politicians, called Federalists , promised a concession to the antifederalists—a Bill of Rights.

James Madison drafted most of the Bill of Rights. Madison was a Virginia representative who would later become the fourth president of the United States. He created the Bill of Rights during the 1st United States Congress, which met from 1789 to 1791 – the first two years that President George Washington was in office.

The Bill of Rights, which was introduced to Congress in 1789 and adopted on December 15, 1791, includes the first ten amendments to the U.S. Constitution.

First Amendment Text

The First Amendment text reads:

“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.”

While the First Amendment protected freedoms of speech, religion, press, assembly and petition, subsequent amendments under the Bill of Rights dealt with the protection of other American values including the Second Amendment right to bear arms and the Sixth Amendment right to a trial by jury.

Freedom of Speech

The First Amendment guarantees freedom of speech . Freedom of speech gives Americans the right to express themselves without having to worry about government interference. It’s the most basic component of freedom of expression.

The U.S. Supreme Court often has struggled to determine what types of speech is protected. Legally, material labeled as obscene has historically been excluded from First Amendment protection, for example, but deciding what qualifies as obscene has been problematic. Speech provoking actions that would harm others—true incitement and/or threats—is also not protected, but again determining what words have qualified as true incitement has been decided on a case-by-case basis.

Freedom of the Press

This freedom is similar to freedom of speech, in that it allows people to express themselves through publication.

There are certain limits to freedom of the press . False or defamatory statements—called libel—aren’t protected under the First Amendment.

Freedom of Religion

The First Amendment, in guaranteeing freedom of religion , prohibits the government from establishing a “state” religion and from favoring one religion over any other.

While not explicitly stated, this amendment establishes the long-established separation of church and state.

Right to Assemble, Right to Petition

The First Amendment protects the freedom to peacefully assemble or gather together or associate with a group of people for social, economic, political or religious purposes. It also protects the right to protest the government.

The right to petition can mean signing a petition or even filing a lawsuit against the government.

First Amendment Court Cases

Here are landmark Supreme Court decisions related to the First Amendment.

Free Speech &  Freedom of the Press :

Schenck v. United States , 1919: In this case, the Supreme Court upheld the conviction of Socialist Party activist Charles Schenck after he distributed fliers urging young men to dodge the draft during World War I .

The Schenck decision helped define limits of freedom of speech, creating the “clear and present danger” standard, explaining when the government is allowed to limit free speech. In this case, the Supreme Court viewed draft resistance as dangerous to national security.

New York Times Co. v. United States , 1971: This landmark Supreme Court case made it possible for The New York Times and Washington Post newspapers to publish the contents of the Pentagon Papers without risk of government censorship.

The Pentagon Papers were a top-secret Department of Defense study of U.S. political and military involvement in Vietnam from 1945 to 1967. Published portions of the Pentagon Papers revealed that the presidential administrations of Harry Truman , Dwight D. Eisenhower , John F. Kennedy and Lyndon B. Johnson had all misled the public about the degree of U.S. involvement in Vietnam.

Texas v. Johnson , 1990: Gregory Lee Johnson, a youth communist, burned a flag during the 1984 Republican National Convention in Dallas, Texas to protest the administration of President Ronald Reagan .

The Supreme Court reversed a Texas court’s decision that Johnson broke the law by desecrating the flag. This Supreme Court Case invalidated statutes in Texas and 47 other states prohibiting flag-burning.

Freedom of Religion:

Reynolds v. United States (1878): This Supreme Court case upheld a federal law banning polygamy, testing the limits of religious liberty in America. The Supreme Court ruled that the First Amendment forbids government from regulating belief but not from actions such as marriage.

Braunfeld v. Brown (1961): The Supreme Court upheld a Pennsylvania law requiring stores to close on Sundays, even though Orthodox Jews argued the law was unfair to them since their religion required them to close their stores on Saturdays as well.

Sherbert v. Verner (1963): The Supreme Court ruled that states could not require a person to abandon their religious beliefs in order to receive benefits. In this case, Adell Sherbert, a Seventh-day Adventist, worked in a textile mill. When her employer switched from a five-day to six-day workweek, she was fired for refusing to work on Saturdays. When she applied for unemployment compensation, a South Carolina court denied her claim.

Lemon v. Kurtzman (1971): This Supreme Court decision struck down a Pennsylvania law allowing the state to reimburse Catholic schools for the salaries of teachers who taught in those schools. This Supreme Court case established the “Lemon Test” for determining when a state or federal law violates the Establishment Clause—that’s the part of the First Amendment that prohibits the government from declaring or financially supporting a state religion.

Ten Commandments Cases (2005): In 2005, the Supreme Court came to seemingly contradictory decisions in two cases involving the display of the Ten Commandments on public property. In the first case, Van Orden v. Perry , the Supreme Court ruled that the display of a six-foot Ten Commandments monument at the Texas State Capital was constitutional. In McCreary County v. ACLU , the U.S. Supreme Court ruled that two large, framed copies of the Ten Commandments in Kentucky courthouses violated the First Amendment.

Right to Assemble & Right to Petition:

NAACP v. Alabama (1958): When Alabama Circuit Court ordered the NAACP to stop doing business in the state and subpoenaed the NAACP for records including their membership list, the NAACP brought the matter to the Supreme Court. The Court ruled in favor of the NAACP, which Justice John Marshall Harlan II writing: “This Court has recognized the vital relationship between freedom to associate and privacy in one's associations.”

Edwards v. South Carolina (1962): On March 2, 1961, 187 Black students marched from Zion Baptist Church to the South Carolina State House, where they were arrested and convicted of breaching the peace. The Supreme Court ruled in an 8-1 decision to reverse the convictions, arguing that the state infringed on the free speech, free assembly and freedom to petition of the students.

The Bill of Rights; White House . History of the First Amendment; The University of Tennessee, Knoxville. Schenck v. United States ; C-Span .

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• ENCYCLOPEDIA
• IN THE CLASSROOM

The First Amendment: 7 things you need to know

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.” – The First Amendment to the U.S. Constitution

• 1 The five freedoms it protects: speech, religion, press, assembly, and the right to petition the government. Together, these five guaranteed freedoms make the people of the United States of America the freest in the world.
• 2 Before agreeing to accept the Constitution, the Founders of our democratic republic demanded that these freedoms be protected by an amendment to the original document – the First Amendment.
• 3 There’s no “legal age” you have to reach to exercise your First Amendment freedoms. They are guaranteed to you the day you’re born. There’s also no citizenship requirement for First Amendment protection. If you’re in the U.S., you have freedom of speech, religion, press, assembly and petition.
• 4 The First Amendment is neither “left-wing” or “right-wing.” It can be used to push for social and political change, or to oppose change. The First Amendment is for everyone.
• 5 The First Amendment protects us against government limits on our freedom of expression, but it doesn’t prevent a private employer from setting its own rules.
• 6 The First Amendment prevents government from requiring you to say something you don’t want to, or keeping you from hearing or reading the words of others (even if you never speak out yourself, you have the right to receive information).
• 7 Students have the right to pray in America’s public schools, as long as there’s no disruption to school operations and no government employees (teachers, coaches) are involved.

Written by  Ken Paulson , director of the Free Speech Center

Looking for a general overview?  Here it is, from the First Amendment Encyclopedia.

The five freedoms

What does the First Amendment say about freedom of speech? Can speech be restricted, and if so, when? In this overview, a First Amendment scholar explains what sorts of speech are protected, where free expression may be limited, and why “[f]reedom of speech is a core American belief, almost a kind of secular religious tenet, an article of constitutional faith.”

How did freedom of the press come about? Are there restrictions on press freedom? The ways in which this core freedom has developed in law are explained in this overview by a First Amendment scholar. In quotations from one court ruling, “‘[F]reedom of expression upon public questions is secured by the First Amendment’” so that “‘debate on public issues should be uninhibited, robust and wide-open.’”

The First Amendment introduced bold new ideas to the world: that government must not impose a state religion on the public, or place undue restrictions on religious practice, but must recognize the right of the people to believe and worship, or not, as their conscience dictates. This First Amendment scholar’s overview makes clear the many aspects of our religious freedom, saying, “That bold constitutional experiment in granting religious freedom to all remains in place, and in progress, in the United States.”

Our right to gather in peaceful public protest – in marches, rallies and other assemblies – is another core freedom guaranteed by the First Amendment. As a First Amendment scholar says in this overview, “First Amendment freedoms ring hollow if government officials can repress expression that they fear will create a disturbance or offend. Unless there is real danger of imminent harm, assembly rights must be respected.”

This least-known First Amendment freedom is nevertheless crucial to our democratic republic’s form of government. “Petition is the right to ask government at any level to right a wrong or correct a problem,” writes a First Amendment scholar in this overview detailing how the right of petition works in our government, and the forms it takes.

More resources

First amendment encyclopedia.

A searchable encyclopedia with more than 1,700 articles on the First Amendment, ranging from case summaries and topical articles/

First Amendment Timeline

Trace the development of the principles leading to the adoption of the First Amendment, and developments in First Amendment jurisprudence through the years.

First Amendment in the Classroom

A collection of educational resources and lesson plans created by prominent First Amendment organizations throughout the nation.

EXPLORE THE FIRST AMENDMENT ENCYCLOPEDIA

COURT CASES

Press issues

VIEW A LIST OF TOPICS

CONCEPTS & LEGAL TERMS

LAWS & PROPOSED LAWS

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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?

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New exhibit

The first amendment, from jefferson to brandeis: the first amendment, the declaration, and the constitution.

These remarks were delivered by Jeffrey Rosen , president and CEO of the National Constitution Center, at a May 2, 2022, celebration of the newly installed marble First Amendment tablet , donated to the National Constitution Center by the Freedom Forum. Its design and installation was made possible through the generosity of Judge J. Michael Luttig and Elizabeth Luttig.

Speech Transcript

Thank you, Judge [J. Michael] Luttig, for your gift to America in bringing the First Amendment Tablet to Philadelphia. It’s fitting that the 45 words of the First Amendment will shine forever over Independence Hall, where the Declaration of Independence and the Constitution were drafted. As we prepare to dedicate the Tablet, let’s gaze together at Independence Hall and then turn our attention back to the words of the Tablet that are shining before us. Holding these two images in our minds is illuminating, because the First Amendment shows us the connection between the Declaration and the Constitution. It protects freedom of conscience, which the Founders considered first among the unalienable rights enshrined in the Preamble to the Declaration and first among the blessings of liberty enshrined in the Preamble to the Constitution.

How do we know that the rights of conscience, as the Founders called them, were first among the unalienable rights and the blessings of liberty recognized by the Declaration and the Constitution? We know that from two other sacred texts I’d like to talk to you about now, as we dedicate the First Amendment Tablet together. Those text are Thomas Jefferson’s Bill for Establishing Religious Freedom in Virginia, drafted in 1777, and Justice Brandeis’s opinion in Whitney v. California , drafted in 1927. 

Jefferson drafted his bill in Virginia months after he returned Philadelphia, where he had just completed the Declaration of Independence. He considered his Religious Freedom Bill among the three accomplishments of his life important enough to be inscribed on his tombstone, along with his having drafted the Declaration and founded the University of Virginia.

Under Virginia’s colonial religious code, all dissenters were required to support and attend the Established Anglican church. Presbyterians and Baptists could be arrested for practicing their faith or preaching the gospel. Quakers, Jews, and other dissenters could be denied the freedom to marry or to have custody of their children. Jefferson proposed not only to disestablish the Anglican Church and remove all criminal punishments for dissent, but also to prohibit all compelled support for religion of any kind. He concluded that because freedom of conscience is a fundamental right, government can regulate “overt acts against peace and good order,” but it lacks all power to “intrude into the field of opinion.”

Jefferson’s Bill sets out four reasons why government can make no law that constrains our freedom of speech, conscience, or opinion. Those four reasons were summed up by Justice Brandeis in Whitney, and they have been further developed by the Supreme Court since then:

1. Freedom of conscience is an unalienable right because people can only think for themselves;

2. Free speech makes representatives accountable to We the People;

3. Free speech is necessary for the discovery of truth and the rejection of falsehood;

4. Free speech allows the public discussion necessary for democratic self government.  

Let’s review each of Jefferson’s four reasons.

1. Freedom of conscience is an unalienable right

“Well aware that the opinions and belief of men depend not on their own will, but follow involuntarily the evidence proposed to their minds,” Jefferson wrote in the first sentence of his draft, “God hath created the mind free, and manifested his supreme will that free it shall remain by making it altogether insusceptible of restraint.” In other words, Jefferson argued, freedom of conscience is, by definition, an unalienable right – one that can’t be alienated or surrendered to government – because our opinions are the involuntary result of the evidence contemplated by our reasoning minds. We can’t give presidents, priests, teachers, or fellow citizens the power to think for us, even if we wanted to, because we are endowed as human beings with the capacity to reason and therefore can’t help thinking for ourselves. We know that Madison, the drafter of the First Amendment, shared Jefferson’s views because he echoed them in his Memorial and Remonstrance in 1785, which persuaded the Virginia legislature to pass Jefferson’s bill. The rights of conscience are “unalienable,” Madison wrote, “because the opinions of men, depending only on the evidence contemplated by their own minds, cannot follow the dictates of other men.”

2. Free speech makes representatives accountable to We the People.

In his Religious Freedom Bill, Jefferson emphasized that it’s crucial in a democracy for citizens to be able to criticize public officials because legislators and religious leaders, “being themselves fallible and uninspired,” will always try to impose “their own opinions and modes of thinking” on others. His prediction came to a head in the controversy of the Alien and Sedition Acts of 1798, where the Federalist Congress made it a crime to criticize the Federalist President, John Adams, but not the Republican Vice President, Thomas Jefferson. And Madison, once again, echoed Jefferson’s views in his Virginia Resolution, which said the Sedition Act “ought to produce universal alarm, because it is levelled against that right of freely examining public characters and measures” which is “the only effectual guardian of every other right.”

3. Free speech is necessary for the discovery and spread of political truth.  

Jefferson concludes his Religious Freedom Bill with words expressing his unshakeable faith in the power of reasoned deliberation to distinguish truth from error, words that are inscribed in marble on the Jefferson Memorial in Washington: “truth is great and will prevail if left to herself; she is the proper and sufficient antagonist to error, and has nothing to fear from the conflict unless by human interposition disarmed of her natural weapons, free argument and debate.”

4. Free speech allows the public discussion necessary for democratic self-government.

Jefferson believed that in a democracy, all citizens have an equal right and responsibility to exercise their rights of conscience. As Jefferson put it in his Virginia Bill, “proscribing any citizen as unworthy the public confidence by laying upon him an incapacity of being called to offices of trust and emolument, unless he profess or renounce this or that religious opinion, is depriving him injuriously of those privileges and advantages to which, in common with his fellow citizens, he has a natural right.”

On the Supreme Court, in the greatest free speech opinion of the twentieth century, Justice Louis Brandeis distilled Jefferson’s four reasons for protecting free speech into a few inspiring paragraphs. In the case, Whitney v. California , we see the first Jewish Justice insisting on the right of Anita Whitney, a white woman, to make a speech defending anti-lynching laws, which were designed to protect the life and liberty of African Americans. Whitney made her speech at a Communist Party meeting, and she was convicted under a California law that made it a crime to associate with organizations that advocated doctrines that might lead to people to break the law. In 1926, Brandeis had read Jefferson’s original draft of the Virginia Bill for Establishing Religious Freedom. In his Whitney opinion in 1927, Brandeis adopted and refined Jefferson’s standard for ensuring that government could only punish overt acts of lawbreaking, not the expression of dangerous opinions.

As Brandeis put it in Whitney , “Fear of serious injury cannot alone justify suppression of free speech and assembly. Men feared witches and burnt women. It is the function of speech to free men from the bondage of irrational fears. To justify suppression of free speech there must be reasonable ground to fear that serious evil will result if free speech is practiced. [And] There must be reasonable ground to believe that the danger apprehended is imminent.”

Brandeis’s inspiring test – government can ban speech only if it’s intended to and likely to cause imminent and serious injury – was based on his Jeffersonian faith in the power of what he called “free and fearless reasoning” to expose falsehood through public discussion. As Brandeis put it, “If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence. Only an emergency can justify repression.” Brandeis’s test was finally adopted by the Supreme Court in 1969. As a result, the United States Supreme Court now protects free speech more vigorously than any other judiciary in the world.

Brandeis went on to summarize Jefferson’s four reasons for why government cannot make laws designed to restrict what Jefferson called “the illimitable freedom of the human mind.” And in the process he achieved a kind of constitutional poetry. I will now read Brandeis’s central passage – listen closely for each of Jefferson’s four reasons: freedom of conscience, democratic accountability, discovery of truth, and democratic self-government.

Those who won our independence believed that the final end of the state was to make men free to develop their faculties and that in its government the deliberative forces should prevail over the arbitrary. They valued liberty both as an end and as a means. They believed liberty to be the secret of happiness and courage to be the secret of liberty. [That’s a quotation from Pericles funeral oration]. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American government.

But as this paragraph shows, all four of Jefferson and Brandeis’s reasons for protecting free speech are based on an Enlightenment faith in reason itself. The First Amendment is based on a faith that people will take the time to develop their faculties of reason, through education and public discussion; that public deliberation will check arbitrary and partisan demagogues rather than enable them; that more speech will lead to the spread of more truth rather than more falsehood; and that people will, in fact, take time for discussion and deliberation, rather than make impulsive decisions. 

This founding faith in reason is being questioned in our polarized age of social media. Twitter, Facebook, and other platforms are based on a business model that’s now being called “enrage to engage.” They have accelerated public discourse to warp speed, creating virtual versions of the mob. Inflammatory posts based on passion travel farther and faster than arguments based on reason. Rather than encouraging deliberation, mass media undermine it by creating bubbles and echo chambers in which citizens see only those opinions they already embrace. For these reasons, some are calling for America’s free speech tradition to be reconsidered or abandoned.

Here at the National Constitution Center, by contrast, we are proud to reaffirm the faith in reasoned deliberation by consecrating the 45 words that will shine forever in this hallowed space. As a vital platform for non partisan education and debate, we bring together Americans of different perspectives to cultivate their faculties of reason. Only by listening to the best arguments on all sides of the constitutional questions at the center of American life can all of us exercise our right and duty to make up our own minds. Like Jefferson and Brandeis and Frederick Douglass and Ruth Bader Ginsburg and all of the great free speech heroes of America history, we are dedicated to preserving, protecting, and defending what Jefferson called “the illimitable freedom of the human mind.” May the shining words of the First Amendment Tablet inspire future generations with this self-evident truth: reason will always combat error as long as individuals are free to follow the dictates of conscience wherever it boldly leads. On behalf of all of us at the National Constitution Center, thanks again to Jan Neuharth and Judge Luttig for making this memorable ceremony possible, and thanks to all of you for joining us.

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Freedom of Expression

FREEDOM OF EXPRESSION

Freedom of speech, of the press, of association, of assembly and petition -- this set of guarantees, protected by the First Amendment, comprises what we refer to as freedom of expression. The Supreme Court has written that this freedom is "the matrix, the indispensable condition of nearly every other form of freedom." Without it, other fundamental rights, like the right to vote, would wither and die.

But in spite of its "preferred position" in our constitutional hierarchy, the nation's commitment to freedom of expression has been tested over and over again. Especially during times of national stress, like war abroad or social upheaval at home, people exercising their First Amendment rights have been censored, fined, even jailed. Those with unpopular political ideas have always borne the brunt of government repression. It was during WWI -- hardly ancient history -- that a person could be jailed just for giving out anti-war leaflets. Out of those early cases, modern First Amendment law evolved. Many struggles and many cases later, ours is the most speech-protective country in the world.

The path to freedom was long and arduous. It took nearly 200 years to establish firm constitutional limits on the government's power to punish "seditious" and "subversive" speech. Many people suffered along the way, such as labor leader Eugene V. Debs, who was sentenced to 10 years in prison under the Espionage Act just for telling a rally of peaceful workers to realize they were "fit for something better than slavery and cannon fodder." Or Sidney Street, jailed in 1969 for burning an American flag on a Harlem street corner to protest the shooting of civil rights figure James Meredith. (see box)

THE FIRST AMENDMENT IGNORED

Early Americans enjoyed great freedom compared to citizens of other nations. Nevertheless, once in power, even the Constitution's framers were guilty of overstepping the First Amendment they had so recently adopted. In 1798, during the French-Indian War, Congress passed the Alien and Sedition Act, which made it a crime for anyone to publish "any false, scandalous and malicious writing" against the government. It was used by the then-dominant Federalist Party to prosecute prominent Republican newspaper editors during the late 18th century.

Throughout the 19th century, sedition, criminal anarchy and criminal conspiracy laws were used to suppress the speech of abolitionists, religious minorities, suffragists, labor organizers, and pacifists. In Virginia prior to the Civil War, for example, anyone who "by speaking or writing maintains that owners have no right of property in slaves" was subject to a one-year prison sentence.

The early 20th century was not much better. In 1912, feminist Margaret Sanger was arrested for giving a lecture on birth control. Trade union meetings were banned and courts routinely granted injunctions prohibiting strikes and other labor protests. Violators were sentenced to prison. Peaceful protesters opposing U. S. entry into World War I were jailed for expressing their opinions. In the early 1920s, many states outlawed the display of red or black flags, symbols of communism and anarchism. In 1923, author Upton Sinclair was arrested for trying to read the text of the First Amendment at a union rally. Many people were arrested merely for membership in groups regarded as "radical" by the government. It was in response to the excesses of this period that the ACLU was founded in 1920.

Free speech rights still need constant, vigilant protection. New questions arise and old ones return. Should flag burning be a crime? What about government or private censorship of works of art that touch on sensitive issues like religion or sexuality? Should the Internet be subject to any form of government control? What about punishing college students who espouse racist or sexist opinions? In answering these questions, the history and the core values of the First Amendment should be our guide.

THE SUPREME COURT AND THE FIRST AMENDMENT

During our nation's early era, the courts were almost universally hostile to political minorities' First Amendment rights; free speech issues did not even reach the Supreme Court until 1919 when, in Schenck v. U.S., the Court unanimously upheld the conviction of a Socialist Party member for mailing anti-anti-war leaflets to draft-age men. A turning point occurred a few months later in Abrams v. U.S. Although the defendant's conviction under the Espionage Act for distributing anti-war leaflets was upheld, two dissenting opinions formed the cornerstone of our modern First Amendment law. Justices Oliver Wendell Holmes and Louis D. Brandeis argued speech could only be punished if it presented "a clear and present danger" of imminent harm. Mere political advocacy, they said, was protected by the First Amendment. Eventually, these justices were able to convince a majority of the Court to adopt the "clear and present danger test."

From then on, the right to freedom of expression grew more secure -- until the 1950s and McCarthyism. The Supreme Court fell prey to the witchhunt mentality of that period, seriously weakening the "clear and present danger" test by holding that speakers could be punished if they advocated overthrowing the government -- even if the danger of such an occurrence were both slight and remote. As a result, many political activists were prosecuted and jailed simply for advocating communist revolution. Loyalty oath requirements for government employees were upheld; thousands of Americans lost their jobs on the basis of flimsy evidence supplied by secret witnesses.

Finally, in 1969, in Brandenberg v. Ohio, the Supreme Court struck down the conviction of a Ku Klux Klan member, and established a new standard: Speech can be suppressed only if it is intended, and likely to produce, "imminent lawless action." Otherwise, even speech that advocates violence is protected. The Brandenberg standard prevails today.

WHAT DOES "PROTECTED SPEECH" INCLUDE?

First Amendment protection is not limited to "pure speech" -- books, newspapers, leaflets, and rallies. It also protects "symbolic speech" -- nonverbal expression whose purpose is to communicate ideas. In its 1969 decision in Tinker v. Des Moines, the Court recognized the right of public school students to wear black armbands in protest of the Vietnam War. In 1989 ( Texas v. Johnson) and again in 1990 ( U.S. v. Eichman), the Court struck down government bans on "flag desecration." Other examples of protected symbolic speech include works of art, T-shirt slogans, political buttons, music lyrics and theatrical performances.

Government can limit some protected speech by imposing "time, place and manner" restrictions. This is most commonly done by requiring permits for meetings, rallies and demonstrations. But a permit cannot be unreasonably withheld, nor can it be denied based on content of the speech. That would be what is called viewpoint discrimination -- and that is unconstitutional.

When a protest crosses the line from speech to action, the government can intervene more aggressively. Political protesters have the right to picket, to distribute literature, to chant and to engage passersby in debate. But they do not have the right to block building entrances or to physically harass people.

FREE SPEECH FOR HATEMONGERS?

The ACLU has often been at the center of controversy for defending the free speech rights of groups that spew hate, such as the Ku Klux Klan and the Nazis. But if only popular ideas were protected, we wouldn't need a First Amendment. History teaches that the first target of government repression is never the last. If we do not come to the defense of the free speech rights of the most unpopular among us, even if their views are antithetical to the very freedom the First Amendment stands for, then no one's liberty will be secure. In that sense, all First Amendment rights are "indivisible."

Censoring so-called hate speech also runs counter to the long-term interests of the most frequent victims of hate: racial, ethnic, religious and sexual minorities. We should not give the government the power to decide which opinions are hateful, for history has taught us that government is more apt to use this power to prosecute minorities than to protect them. As one federal judge has put it, tolerating hateful speech is "the best protection we have against any Nazi-type regime in this country."

At the same time, freedom of speech does not prevent punishing conduct that intimidates, harasses, or threatens another person, even if words are used. Threatening phone calls, for example, are not constitutionally protected.

SPEECH & NATIONAL SECURITY

The Supreme Court has recognized the government's interest in keeping some information secret, such as wartime troop deployments. But the Court has never actually upheld an injunction against speech on national security grounds. Two lessons can be learned from this historical fact. First, the amount of speech that can be curtailed in the interest of national security is very limited. And second, the government has historically overused the concept of "national security" to shield itself from criticism, and to discourage public discussion of controversial policies or decisions.

In 1971, the publication of the "Pentagon Papers" by the New York Times brought the conflicting claims of free speech and national security to a head. The Pentagon Papers, a voluminous secret history and analysis of the country's involvement in Vietnam, was leaked to the press. When the Times ignored the government's demand that it cease publication, the stage was set for a Supreme Court decision. In the landmark U.S. v. New York Times case, the Court ruled that the government could not, through "prior restraint," block publication of any material unless it could prove that it would "surely" result in "direct, immediate, and irreparable" harm to the nation. This the government failed to prove, and the public was given access to vital information about an issue of enormous importance.

The public's First Amendment "right to know" is essential to its ability to fully participate in democratic decision-making. As the Pentagon Papers case demonstrates, the government's claims of "national security" must always be closely scrutinized to make sure they are valid.

UNPROTECTED EXPRESSION

The Supreme Court has recognized several limited exceptions to First Amendment protection.

• In Chaplinsky v. New Hampshire (1942), the Court held that so-called "fighting words ... which by their very utterance inflict injury or tend to incite an immediate breach of the peace," are not protected. This decision was based on the fact that fighting words are of "slight social value as a step to truth."
• In New York Times Co. v. Sullivan (1964), the Court held that defamatory falsehoods about public officials can be punished -- only if the offended official can prove the falsehoods were published with "actual malice," i.e.: "knowledge that the statement was false or with reckless disregard of whether it was false or not." Other kinds of "libelous statements" are also punishable.
• Legally "obscene" material has historically been excluded from First Amendment protection. Unfortunately, the relatively narrow obscenity exception, described below, has been abused by government authorities and private pressure groups. Sexual expression in art and entertainment is, and has historically been, the most frequent target of censorship crusades, from James Joyce's classic Ulysses to the photographs of Robert Mapplethorpe.

In the 1973 Miller v. California decision, the Court established three conditions that must be present if a work is to be deemed "legally obscene." It must 1) appeal to the average person's prurient (shameful, morbid) interest in sex; 2) depict sexual conduct in a "patently offensive way" as defined by community standards; and 3) taken as a whole, lack serious literary, artistic, political or scientific value. Attempts to apply the "Miller test" have demonstrated the impossibility of formulating a precise definition of obscenity. Justice Potter Stewart once delivered a famous one-liner on the subject: "I know it when I see it." But the fact is, the obscenity exception to the First Amendment is highly subjective and practically invites government abuse.

THREE REASONS WHY FREEDOM OF EXPRESSION IS ESSENTIAL TO A FREE SOCIETY

It's the foundation of self-fulfillment. The right to express one's thoughts and to communicate freely with others affirms the dignity and worth of each and every member of society, and allows each individual to realize his or her full human potential. Thus, freedom of expression is an end in itself -- and as such, deserves society's greatest protection.

It's vital to the attainment and advancement of knowledge, and the search for the truth. The eminent 19th-century writer and civil libertarian, John Stuart Mill, contended that enlightened judgment is possible only if one considers all facts and ideas, from whatever source, and tests one's own conclusions against opposing views. Therefore, all points of view -- even those that are "bad" or socially harmful -- should be represented in society's "marketplace of ideas."

It's necessary to our system of self-government and gives the American people a "checking function" against government excess and corruption. If the American people are to be the masters of their fate and of their elected government, they must be well-informed and have access to all information, ideas and points of view. Mass ignorance is a breeding ground for oppression and tyranny.

THE ACLU: ONGOING CHAMPION OF FREE EXPRESSION

The American Civil Liberties Union has been involved in virtually all of the landmark First Amendment cases to reach the U.S. Supreme Court, and remains absolutely committed to the preservation of each and every individual's freedom of expression. During the 1980s, we defended the right of artists and entertainers to perform and produce works of art free of government and private censorship. During the 1990s, the organization fought to protect free speech in cyberspace when state and federal government attempted to impose content-based regulations on the Internet. In addition, the ACLU offers several books on the subject of freedom of expression:

RESOURCES: Ira Glasser, Visions of Liberty, Arcade, 1991. J. Gora, D. Goldberger, G. Stern, M. Halperin, The Right to Protest: The Basic ACLU Guide to Free Expression, SIU Press, 1991. Franklin Haiman, "Speech Acts" and the First Amendment 1993, SIU Press, 1993. Nadine Strossen, Defending Pornography: Free Speech, Sex and the Fight for Women's Rights, Anchor Press, 1995.

To order call 1-800-775-ACLU

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What Does Free Speech Mean?

Among other cherished values, the First Amendment protects freedom of speech. The U.S. Supreme Court often has struggled to determine what exactly constitutes protected speech. The following are examples of speech, both direct (words) and symbolic (actions), that the Court has decided are either entitled to First Amendment protections, or not.

The First Amendment states, in relevant part, that:

“Congress shall make no law...abridging freedom of speech.”

Freedom of speech includes the right:

• Not to speak (specifically, the right not to salute the flag). West Virginia Board of Education v. Barnette , 319 U.S. 624 (1943).
• Of students to wear black armbands to school to protest a war (“Students do not shed their constitutional rights at the schoolhouse gate.”). Tinker v. Des Moines , 393 U.S. 503 (1969).
• To use certain offensive words and phrases to convey political messages. Cohen v. California , 403 U.S. 15 (1971).
• To contribute money (under certain circumstances) to political campaigns. Buckley v. Valeo , 424 U.S. 1 (1976).
• To advertise commercial products and professional services (with some restrictions). Virginia Board of Pharmacy v. Virginia Consumer Council , 425 U.S. 748 (1976);  Bates v. State Bar of Arizona , 433 U.S. 350 (1977).
• To engage in symbolic speech, (e.g., burning the flag in protest). Texas v. Johnson , 491 U.S. 397 (1989);  United States v. Eichman , 496 U.S. 310 (1990).

Freedom of speech does not include the right:

• To incite imminent lawless action. Brandenburg v. Ohio , 395 U.S. 444 (1969).
• To make or distribute obscene materials. Roth v. United States , 354 U.S. 476 (1957).
• To burn draft cards as an anti-war protest. United States v. O’Brien , 391 U.S. 367 (1968).
• To permit students to print articles in a school newspaper over the objections of the school administration.  Hazelwood School District v. Kuhlmeier , 484 U.S. 260 (1988).
• Of students to make an obscene speech at a school-sponsored event. Bethel School District #43 v. Fraser , 478 U.S. 675 (1986).
• Of students to advocate illegal drug use at a school-sponsored event. Morse v. Frederick, __ U.S. __ (2007).

Disclaimer: These resources are created by the Administrative Office of the U.S. Courts for use in educational activities only. They may not reflect the current state of the law, and are not intended to provide legal advice, guidance on litigation, or commentary on legislation. 

DISCLAIMER: These resources are created by the Administrative Office of the U.S. Courts for educational purposes only. They may not reflect the current state of the law, and are not intended to provide legal advice, guidance on litigation, or commentary on any pending case or legislation.

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• Introduction

Which government actions are subject to the First Amendment?

Freedoms of speech, of the press, of assembly, and to petition.

• Speech on government property and in government-run institutions
• Related rights
• Free exercise of religion
• The establishment clause

• Why was the Bill of Rights added?
• How was the Bill of Rights added to the U.S. Constitution?
• Does the Bill of Rights apply to the states?

First Amendment

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First Amendment , amendment (1791) to the Constitution of the United States that is part of the Bill of Rights and reads,

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.

The clauses of the amendment are often called the establishment clause , the free exercise clause, the free speech clause, the free press clause, the assembly clause, and the petition clause.

The First Amendment, like the rest of the Bill of Rights, originally restricted only what the federal government may do and did not bind the states. Most state constitutions had their own bills of rights, and those generally included provisions similar to those found in the First Amendment. But the state provisions could be enforced only by state courts.

In 1868, however, the Fourteenth Amendment was added to the U.S. Constitution, and it prohibited states from denying people “liberty” without “ due process .” Since then the U.S. Supreme Court has gradually used the due process clause to apply most of the Bill of Rights to state governments. In particular, from the 1920s to the ’40s the Supreme Court applied all the clauses of the First Amendment to the states. Thus, the First Amendment now covers actions by federal, state, and local governments. The First Amendment also applies to all branches of government, including legislatures, courts, juries, and executive officials and agencies. This includes public employers, public university systems, and public school systems.

The First Amendment, however, applies only to restrictions imposed by the government, since the First and Fourteenth amendments refer only to government action. As a result, if a private employer fires an employee because of the employee’s speech, there is no First Amendment violation. There is likewise no violation if a private university expels a student for what the student said, if a commercial landlord restricts what bumper stickers are sold on the property it owns, or if an Internet service provider refuses to host certain Web sites.

Legislatures sometimes enact laws that protect speakers or religious observers from retaliation by private organizations. For example, Title VII of the federal Civil Rights Act of 1964 bans religious discrimination even by private employers. Similarly, laws in some states prohibit employers from firing employees for off-duty political activity. But such prohibitions are imposed by legislative choice rather than by the First Amendment.

The freedoms of speech , of the press , of assembly, and to petition—discussed here together as “ freedom of expression ”—broadly protect expression from governmental restrictions. Thus, for instance, the government may not outlaw antiwar speech, speech praising violence , racist speech, pro- communist speech, and the like. Nor may the government impose special taxes on speech on certain topics or limit demonstrations that express certain views. The government also may not authorize civil lawsuits based on people’s speech, unless the speech falls within a traditionally recognized First Amendment exception. This is why, for example, people may not sue for emotional distress inflicted by offensive magazine articles about them, unless the articles are not just offensive but include false statements that fall within the defamation exception ( see below Permissible restrictions on expression ).

The free expression guarantees are not limited to political speech. They also cover speech about science, religion, morality , and social issues as well as art and even personal gossip.

Freedom of the press confirms that the government may not restrict mass communication . It does not, however, give media businesses any additional constitutional rights beyond what nonprofessional speakers have.

Freedom of petition protects the right to communicate with government officials. This includes lobbying government officials and petitioning the courts by filing lawsuits, unless the court concludes that the lawsuit clearly lacks any legal basis.

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Free Speech Supreme Court Cases

The First Amendment to the U.S. Constitution provides that the government must not “abridge the freedom of speech, or of the press.” Free speech has long been considered one of the pillars of a democracy. Explaining its importance, Justice Oliver Wendell Holmes, Jr. declared that “the best test of truth is the power of the thought to get itself accepted in the competition of the market.” A faith in this marketplace of ideas continues to buttress First Amendment law.

Since the First World War, the Supreme Court has grappled with how far the government can go in restricting speech. This often requires asking a threshold question: what is “speech” for First Amendment purposes? The Supreme Court has found that speech may extend beyond the spoken and written word into the area of expressive conduct, in which actions send a symbolic message. For example, burning a flag or wearing a black arm band has received First Amendment protection. Cases involving campaign financing have shown that sometimes even certain uses of money are considered speech.

The distinction between content-based and content-neutral laws has played a key role in free speech cases. Content-based laws regulate speech based on its substance, while content-neutral laws generally control the time, place, and manner of speech. The government bears a heavy burden in defending content-based restrictions, since they are subject to strict scrutiny. In contrast, content-neutral regulations are reviewed under a form of intermediate scrutiny, which means that they are more likely to survive a challenge.

Below is a selection of Supreme Court cases involving free speech, arranged from newest to oldest.

Author: Elena Kagan

The First Amendment offers protection when an entity engaging in expressive activity, including compiling and curating others’ speech, is directed to accommodate messages it would prefer to exclude. Also, a state may not interfere with private actors’ speech to advance its own vision of ideological balance.

Author: Sonia Sotomayor

The First Amendment prohibits government officials from wielding their power selectively to punish or suppress speech, including through private intermediaries.

Author: Amy Coney Barrett

When a government official posts about job-related topics on social media, this speech is attributable to the government only if the official possessed actual authority to speak on the government’s behalf and purported to exercise that authority when they spoke on social media.

Author: Neil Gorsuch

The First Amendment prohibits a state from forcing a website designer to create expressive designs speaking messages with which the designer disagrees.

Although true threats of violence are outside the bounds of First Amendment protection, the First Amendment still requires proof that the defendant had some subjective understanding of the threatening nature of their statements. However, the state only needs to prove recklessness, which means that the defendant consciously disregarded a substantial risk that their communications would be viewed as threatening violence.

A distinction between on-premises and off-premises signs was facially content neutral under the First Amendment and thus not subject to strict scrutiny.

Author: Brett Kavanaugh

When a private entity operates public access channels on a cable system, it is not performing a traditional, exclusive public function, and it is not transformed into a state actor by opening its property for speech by others. Thus, it is not subject to First Amendment constraints on its editorial discretion.

Author: Samuel A. Alito, Jr.

The state's extraction of agency fees from non-consenting public-sector employees violates the First Amendment.

Author: John Roberts

A ban on voters wearing a political badge, political button, or anything bearing political insignia inside a polling place on Election Day violated the Free Speech Clause.

Author: Stephen Breyer

When an employer demotes an employee out of a desire to prevent the employee from engaging in protected political activity, the employee is entitled to challenge that unlawful action under the First Amendment and Section 1983 even if the employer's actions are based on a factual mistake about the employee's behavior.

Author: Clarence Thomas

Since content-based laws target speech based on its communicative content, they are presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state interests. Speech regulation is content-based if a law applies to particular speech because of the topic discussed or the idea or message expressed.

A public employee's sworn testimony outside the scope of their ordinary job duties is entitled to First Amendment protection.

Congress may regulate campaign contributions to protect against corruption or the appearance of corruption, but it may not regulate contributions simply to reduce the amount of money in politics, or to restrict the political participation of some in order to enhance the relative influence of others.

Author: Anthony Kennedy

There is no general exception to the First Amendment for false statements. This comports with the common understanding that some false statements are inevitable if there is to be an open and vigorous expression of views in public and private conversation, expression that the First Amendment seeks to guarantee.

Author: Antonin Scalia

Video games qualify for First Amendment protection. Like protected books, plays, and movies, they communicate ideas through familiar literary devices and features distinctive to the medium.

Speech in aid of pharmaceutical marketing is a form of expression protected by the Free Speech Clause.

The First Amendment can serve as a defense in state tort claims, including claims for intentional infliction of emotional distress. Whether the First Amendment prohibits holding a defendant liable for their speech turns largely on whether the speech is of public or private concern, as determined by all the circumstances of the case.

The government may not suppress political speech on the basis of the speaker's corporate identity. No sufficient governmental interest justifies limits on the political speech of non-profit or for-profit corporations.

The placement of a permanent monument in a public park is a form of government speech and is therefore not subject to scrutiny under the Free Speech Clause.

A principal may restrict student speech at a school event when that speech is reasonably viewed as promoting illegal drug use.

When public employees make statements pursuant to their official duties, the Constitution does not insulate their communications from employer discipline.

When plaintiffs challenge a content-based speech restriction, the government has the burden to prove that the proposed alternatives will not be as effective as the challenged statute.

Author: William Rehnquist

The governmental interest in preventing the actual or apparent corruption of federal candidates and officeholders constitutes a sufficiently important interest to justify contribution limits.

Author: Sandra Day O’Connor

While a state may ban cross burning carried out with the intent to intimidate, a provision in a statute treating any cross burning as prima facie evidence of intent to intimidate rendered the statute unconstitutional.

A canon of judicial conduct that prohibits a candidate for a judicial office from announcing their views on disputed legal or political issues violates the First Amendment.

A law's reliance on community standards to identify what material is harmful to minors did not by itself render the statute substantially overbroad for First Amendment purposes.

Viewpoint-based funding decisions may be sustained when the government is the speaker, or when the government uses private speakers to transmit information pertaining to its own program. It does not follow that viewpoint-based restrictions are proper when the government does not speak or subsidize transmittal of a message that it favors but instead expends funds to encourage a diversity of views from private speakers.

Although the First Amendment applies in the subsidy context, Congress has wide latitude to set spending priorities. Also, when the government is acting as patron rather than sovereign, the consequences of imprecision in its decision-making criteria are not constitutionally severe.

Author: John Paul Stevens

Although the government has an interest in protecting children from potentially harmful materials, a law cannot pursue this interest by suppressing a large amount of speech that adults have a constitutional right to send and receive if less restrictive alternatives would be at least as effective in achieving the law's legitimate purposes.

In determining whether the government is acting to preserve the limits of the forum that it has created so that the exclusion of a class of speech is legitimate, there is a distinction between content discrimination and viewpoint discrimination. Content discrimination may be permissible if it preserves the purposes of the limited forum. Viewpoint discrimination is presumed impermissible when directed against speech that is otherwise within the forum's limitations. Also, the guarantee of neutrality toward religion is respected when the government, following neutral criteria and even-handed policies, extends benefits to recipients whose ideologies and viewpoints, including some that are religious, are broad and diverse.

Areas of speech that can be regulated because of their constitutionally proscribable content still cannot be made vehicles for content discrimination unrelated to their distinctively proscribable content. However, when the basis for the content discrimination consists entirely of the very reason why the entire class of speech at issue is proscribable, no significant danger of idea or viewpoint discrimination exists. Another valid basis for according differential treatment to even a content-defined subclass of proscribable speech is that the subclass happens to be associated with particular secondary effects of the speech, so the regulation is justified without reference to the content of the speech.

Author: Harry Blackmun

Speech cannot be financially burdened, any more than it can be punished or banned, simply because it might offend a hostile mob.

Nude dancing at adult entertainment establishments is expressive conduct within the outer perimeters of the First Amendment, but only marginally so. The enforcement of a public indecency law to prevent totally nude dancing does not violate the First Amendment guarantee of freedom of expression.

The government may make a value judgment favoring childbirth over abortion and implement that judgment by the allocation of public funds. In so doing, the government has not discriminated on the basis of viewpoint; it has merely chosen to fund one activity to the exclusion of another.

Even in a public forum, the government may impose reasonable restrictions on the time, place, or manner of protected speech, provided that the restrictions are justified without reference to the content of the regulated speech, they are narrowly tailored to serve a significant governmental interest, and they leave open ample alternative channels for communication of the information.

Author: William Brennan

The government generally has a freer hand in restricting expressive conduct than in restricting the written or spoken word. However, it may not proscribe particular conduct because it has expressive elements.

Author: Byron White

Educators do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities, so long as their actions are reasonably related to legitimate pedagogical concerns.

Author: Warren Burger

The use of an offensive form of expression may not be prohibited to adults making what the speaker considers a political point, but it does not follow that the same latitude must be permitted to children in a public school.

A broad ban on all editorializing by every broadcast station that receives public funds exceeds what is necessary to protect against the risk of government interference or to prevent the public from assuming that editorials by public broadcasting stations represent the official view of the government.

When a public employee speaks as an employee on matters only of personal interest, a federal court is generally not the appropriate forum to review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee's behavior.

States are entitled to greater leeway in the regulation of pornographic depictions of children. The standard of Miller v. California for determining what is legally obscene is not a satisfactory solution to the child pornography problem.

A public employee does not forfeit their First Amendment protection when they arrange to communicate privately with their employer, rather than expressing their views publicly.

Author: Per Curiam

Restrictions on individual contributions to political campaigns and candidates did not violate the First Amendment. However, restrictions on independent expenditures in campaigns, limits on expenditures by candidates from their personal or family resources, and limits on total campaign expenditures violated the First Amendment. Also, any appointee exercising significant authority pursuant to the laws of the United States is an “Officer of the United States” and must be appointed in the manner prescribed by the Appointments Clause.

Author: Lewis Powell

So long as they do not impose liability without fault, states may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood that injures a private individual and whose substance makes substantial danger to reputation apparent.

The guidelines for the trier of fact in an obscenity case are whether the average person applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest; whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

States have a legitimate interest in regulating commerce in obscene material and its exhibition in places of public accommodation, including adult theaters.

The First Amendment does not relieve a newspaper reporter of the obligation to respond to a grand jury subpoena and answer questions relevant to a criminal investigation. Therefore, the First Amendment does not afford a reporter a constitutional testimonial privilege for an agreement that they make to conceal facts relevant to a grand jury's investigation of a crime or to conceal the criminal conduct of their source or evidence of it.

Author: John Marshall Harlan II

A state could not make the simple public display of a single four-letter expletive a criminal offense.

It is the purpose of the First Amendment to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail. The right of the viewers and listeners, rather than the right of the broadcasters, is paramount.

Freedoms of speech and press do not permit a state to forbid advocacy of the use of force or of law violation except when such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.

Author: Abe Fortas

A student may express their opinions, even on controversial subjects, if they do so without materially and substantially interfering with the requirements of appropriate discipline in the operation of the school, and without colliding with the rights of others. However, conduct by a student that materially disrupts classwork or involves substantial disorder or invasion of the rights of others is not immunized by the constitutional guarantee of freedom of speech.

Author: Thurgood Marshall

When a public employee's false statements concerned issues that were currently the subject of public attention and did not interfere with the performance of their duties or the general operation of their employer, they were entitled to the same protection as if the statements had been made by a member of the general public.

Author: Earl Warren

When speech and non-speech elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the non-speech element can justify incidental limitations on First Amendment freedoms. A government regulation is sufficiently justified if it is within the constitutional power of the government, it furthers an important or substantial governmental interest, the governmental interest is unrelated to the suppression of free expression, and the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.

A public figure who is not a public official may recover damages for defamatory falsehood substantially endangering their reputation on a showing of highly unreasonable conduct constituting an extreme departure from the standards of investigation and reporting ordinarily maintained by responsible publishers. (In a concurrence, Justice Warren advised applying the New York Times standard.)

Author: Arthur Goldberg

Allowing unfettered discretion to local officials in the regulation of the use of the streets for peaceful parades and meetings is an unwarranted abridgment of freedom of speech.

A state cannot award damages to a public official for defamatory falsehood related to their official conduct unless they prove actual malice, which means that the statement was made with knowledge of its falsity or with reckless disregard of whether it was true or false.

Obscenity is not within the area of constitutionally protected freedom of speech or press under the First Amendment.

Author: Tom C. Clark

Expression by means of motion pictures is included within the free speech and free press guaranty of the First Amendment. A state may not place a prior restraint on the showing of a motion picture on the basis of a censor's conclusion that it is sacrilegious.

Author: Felix Frankfurter

In the face of a history of tension and violence and its frequent obligato of extreme racial and religious propaganda, a state legislature was not without reason in seeking ways to curb false or malicious defamation of racial and religious groups, made in public places and by means calculated to have a powerful emotional impact on those to whom it was presented.

Author: Fred M. Vinson

Courts must ask whether the gravity of the evil, discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger.

When a speaker passes the bounds of argument or persuasion and undertakes incitement to riot, the police are not powerless to prevent a breach of the peace.

Author: William O. Douglas

Freedom of speech, although not absolute, is protected against censorship or punishment unless it is shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest.

Author: Robert H. Jackson

The action of a state in making it compulsory for children in public schools to salute the flag and pledge allegiance violates the First Amendment. The issue does not turn on the possession of particular religious views or the sincerity with which they are held. (This decision overturned Gobitis .)

Author: Frank Murphy

There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or fighting words, which by their very utterance inflict injury or tend to incite an immediate breach of the peace.

Author: Owen Josephus Roberts

When a clear and present danger of riot, disorder, interference with traffic on the public streets, or other immediate threat to public safety, peace, or order appears, the power of the state to prevent or punish is obvious.

Author: Charles Evans Hughes

In determining the extent of the constitutional protection for the freedom of the press, it has been generally considered that it is the chief purpose of the guaranty to prevent previous restraints upon publication.

Author: Louis Brandeis

No danger flowing from speech can be deemed clear and present unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion.

Author: Edward Terry Sanford

The government cannot reasonably be required to defer taking measures against revolutionary utterances advocating the overthrow of organized government until they lead to actual disturbances of the peace or imminent danger of the government's destruction. (This case is also significant for applying the First Amendment to the states via the Fourteenth Amendment.)

Author: Oliver Wendell Holmes, Jr.

It is only the present danger of immediate evil or an intent to bring it about that warrants Congress in setting a limit to the expression of opinion when private rights are not concerned.

The First Amendment, while prohibiting legislation against free speech as such, was not intended to give immunity to every possible use of language.

The delivery of a speech in such word and such circumstances that the probable effect will be to prevent recruiting, and with that intent, is not protected because of the fact that the purpose to oppose the war and obstruct recruiting, and the expressions used in that regard, were but incidental parts of a general propaganda of socialism and expressions of a general and conscientious belief.

Words that, ordinarily and in many places, would be within the freedom of speech protected by the First Amendment may become subject to prohibition when of such a nature and used in such circumstances as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.

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Speech is never totally free

Cass Sunstein suggests universities look to First Amendment as they struggle to craft rules in wake of disruptive protests

Harvard Staff Writer

In the aftermath of student protests that shook campuses last spring, universities across the nation are wrestling with questions about how and when speech should be regulated. Educational institutions could turn to the First Amendment for guidance, said Cass Sunstein, Robert Walmsley University Professor, during a Tuesday talk at Harvard Law School.

Universities should strive to keep a balanced approach to free speech while protecting their educational mission. Cass Sunstein

The First Amendment, adopted in 1791, establishes that “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.”

The amendment, with its prohibition on “abridging” freedoms, might seem absolute. But, Sunstein notes, that is not the case. The legal doctrine that has developed over the decades provides a set of guiding principles that include permissible restrictions, which can help universities fulfill their educational mission while balancing free speech.

“The First Amendment provides something like a diagnosis of problems,” said Sunstein in a dialogue with Professor of Law Benjamin Eidelson about Sunstein’s new book, “Campus Free Speech.” The book offers a case-study framework for resolving dilemmas around speech.

First Amendment principles offer clear guidance when it comes to regulating actions that are considered “true threats,” Sunstein said, such as students who threaten to commit violence against their classmates or destroy buildings or are part of a criminal conspiracy.

In addition, some regulation can be appropriate if it’s essential to an institution’s core mission. Such limits have been allowed for religious and military schools, for instance.

He also noted that private universities are not legally bound by the First Amendment the way public universities and public officials are. Still, he said, free speech is essential to the learning enterprise and universities, as centers of learning, should commit to preserving it.

Allowable restrictions can be based on content of speech, such as when universities ask professors not to discuss certain topics in class. They can be content-neutral, as when they don’t allow loud music in dorms after midnight, or they can be based on viewpoint, such as when professors are hired for their political views for the sake of intellectual diversity.

But universities should strive to keep a balanced approach to free speech while protecting their educational mission, said Sunstein.

“The idea of the educational mission being a permission slip for universities to regulate speech seems to me both essential and rightly evocative of the phrase ‘That way lies madness,’” said Sunstein. “Suppose there is a faculty member who thinks America is rotten to the core, there may be students who think, ‘America is the opposite of rotten to the core’ and ‘How can I learn from someone who despises my nation?’ The idea that leading to discomfort or feeling of something like exclusion as a basis for regulating speech is like the heckler’s veto, and that is not consistent with the kind of pluralism educational institutions prize.”

Besides serving as a manual or diagnostic tool, free-speech principles can also serve as a source of inspiration. Sunstein said that while writing his book he was inspired by the writings of some Supreme Court justices. He said he was particularly moved by the words of Supreme Court Justice Robert H. Jackson, who wrote the landmark ruling in West Virginia State Board of Education v. Barnette . The 1943 decision established that the First Amendment protects students from being compelled to salute the American flag or recite the Pledge of Allegiance in public schools.

“Justice Jackson wrote, ‘Compulsory unification of opinion achieves only the unanimity of the graveyard,’” said Sunstein. “There are lots of graveyards. They’re all quiet. And that’s not what we need at the greatest arsenal for democracy that is America’s educational institutions.”

He said the nation’s colleges and universities could also learn from the words of Oliver Wendell Holmes Jr., who wrote a famous defense of free speech in Abrams v. United States in 1919.

“First Amendment principles as developed over a very long period by judges of very diverse predilections have, broadly speaking, to be celebrated and honored rather than deplored,” said Sunstein. “Justice Oliver Wendell Holmes Jr. said, ‘We protect speech, the speech we hate and that we believe to be fraught with death.’ That’s quite a sentence for a Supreme Court justice to write, and it’s a good sentence.”

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A philosopher makes the case against free speech

And I push back.

by Sean Illing

I don’t consider myself an absolutist about anything — except for free speech.

The value of free expression seems so fundamental to me that it hardly needs a defense. It is, after all, enshrined in the First Amendment of the US Constitution. But like any dogma, there is utility in occasionally challenging the assumptions that undergird it.

Which brings me to a paper I recently read in the Sydney Law Review , titled “The Case Against Free Speech.” The author is Brian Leiter, a political philosopher at the University of Chicago. Leiter argues that we shouldn’t think of free speech as an inherently good thing and that there are negative consequences for pretending that it is.

The sort of speech he’s talking about is public, the kind of stuff we hear on television or read in newspapers. He’s not suggesting we should even think about regulating private or interpersonal speech. And in fact, he doesn’t think we can even regulate public speech, mostly because we just don’t have a reliable way to do it.

But he does raise some interesting objections against what’s often called the “autonomy” defense of free speech, which holds that people are only free to the extent that they’re allowed to say what they want, read what they want, and determine for themselves what is true and what is false.

According to Leiter, this is a bogus argument because people are not actually free in the way we suppose. We’re all conditioned by our environment, and what we want and think are really just products of social, economic, and psychological forces beyond our control. If he’s right, then the “autonomy” defenses of free speech are just wrong, and probably dangerous.

I spoke to Leiter about what he thinks we get wrong about free speech, and why most of the arguments people make in defense of it fall apart when you examine them closely. A lightly edited transcript of our conversation follows.

Sean Illing

Let me start by summing up your argument as simply as I can, and then we can go from there. I take you to be saying that most of our public speech, the kind of speech we consider morally and politically serious, is not only useless but actually hinders our collective effort to get at the truth, and therefore we shouldn’t permit its expression without considering the social costs.

Brian Leiter

That’s really close, but I think it’s not quite right in one important respect. Because at the end, I actually argue for a pretty strong libertarian approach to free speech, but not on the grounds that the speech necessarily has value. A lot of it has no value, as you correctly said in your summary.

But basically I don’t think we can be confident that the regulation of speech, or the regulators of speech, would make the right choices in discerning what is good and bad speech, or what is helpful or unhelpful speech. But this says more about the pathologies of the American system than it does about the value of freedom of speech.

We’ll come back to the regulator problem, because I think it ultimately undercuts any effort we could ever make to control speech. Maybe it’ll help if you first explain why you want to take a sledgehammer to this assumption that free speech is an inherently good thing for society.

My paper is about running through all the arguments people make in defense of this assumption and showing why they don’t hold up. I’ll start with the simplest one, which is this idea that a free marketplace of ideas is likely to help promote discovery of the truth. This is probably the most famous defense of free speech associated with the British philosopher John Stuart Mill.

But what people often don’t stop and notice is that even Mill thought certain background conditions had to be established for it to really be true that a marketplace of ideas would lead to the discovery of the truth. Mill said, “People have to be educated, and they have to be mature.” Those are pretty thin conditions, and you might worry that a lot more is required for a real marketplace of ideas to be conducive to the truth.

As I point out, we have an important institution in American society that aims to discover the truth, namely the court system. And the striking thing about the court system is that it completely rejects the marketplace of ideas view. It says, “It’s crazy to think we’ll discover the truth by just permitting people to express any view they want, make any claim they want.” In the court system, we impose massive restrictions on speech to facilitate the discovery of truth.

Okay, I’m glad you brought up your court analogy. Here’s my problem: A courtroom and a political community are wildly different contexts, which even you acknowledge in the article. To take just one difference: A court’s job is to establish the facts so that jurists can decide accordingly. But politics is about values as much as facts. Is there any way for a community to decide how to live and what’s worth pursuing without allowing the free exchange of ideas?

Fair question. I would disagree a bit with the assumption that politics is mainly about values rather than facts. An awful lot of politics is about facts and their relationship to the values that can be realized in concrete policies.

So take one of the examples I use: the Bush administration’s efforts to justify the illegal war of aggression against Iraq in 2003. That turned heavily on the misrepresentation of the facts. It turned heavily on Fox News, in particular, indoctrinating a large part of the population into thinking there was some connection between Saddam Hussein and al-Qaeda when there was none.

And then take something like climate change, where there’s a constant disagreement about the facts with so-called skeptics who insist, in the public sphere, that the science doesn’t really establish this. These are fact disputes, not value disputes.

I certainly agree with you that there are value disputes, but the establishment of facts is hugely important.

Just to be clear, I’m not saying facts don’t matter. I’m saying politics is about deciding what we ought to do in light of what is. And in order to have that kind of conversation, we need the free exchange of ideas.

Again, I’d resist that a little bit. I think most of our disputes are about factual questions. I mean, Bernie Sanders and Elizabeth Warren aren’t saying, “In order to promote the values of equality and well-being, we need higher taxes on the rich.” And the other side isn’t saying, “We’re not interested in equality or freedom.” They say, “We don’t think that’s the way to realize those values.”

I disagree about that, but I don’t want tumble down a rabbit hole here, so let’s stay on topic. Is there any way to maintain a free society without simply accepting that most opinions on serious topics are bad and ill informed, and yet that’s the price we pay for allowing citizens to express their political identity?

There is clearly a lot of value to people in letting them express their political identity, their moral views, and so on. It’s important to people’s well-being to be able to speak their mind. I don’t want to discount the value of that. I just think that’s one value that should go into a broader calculation that takes into account all the harms that are related to the expression of certain kinds of views.

Do you think people are free in any meaningful sense if what they’re allowed to hear, or see, or read, is controlled or constrained in any way?

It depends on what kind of control and regulation is involved. So I’ll give you another analogy. I control what the students in my class read and discuss. I actually think this enhances their freedom and their autonomy by bringing to their attention substantive materials, helping them frame thinking about these particular issues, and so on. So regulation isn’t necessarily incompatible with free thinking.

But that brings us back to the question I touched on at the very beginning. The best argument for broad freedom of expression is skepticism about whether those who would regulate expression would do so in a way that was productive and constructive, rather than simply making things worse.

Although you keep expressing skepticism, you still seem to think we’d be better off with gatekeepers — some institution or body of institutions that decides what should or shouldn’t be expressed in the public sphere.

That would seem to be the conclusion following from the arguments in the first part of the paper. But my conclusion is that even if there isn’t enough positive value to speech to justify its unfettered expression, there are certainly reasons to be worried about whether capitalist democracies will regulate speech in ways that aren’t simply pernicious.

But this has more to do with the pathologies of our political system than it does to do with the intrinsic value of speech. That’s one of the main points I’m pressing on in this article.

As I read your paper, I kept thinking about the media critic Walter Lippmann ( whom I wrote about for Vox ), who struggled with these same questions. He didn’t think most people could be trusted to decide intelligently what ought to be done, so he wanted technocrats and experts to act as mediators of sorts. But the problem is always, who are the arbiters of worthy speech in this imagined order? And how will we stop them from abusing their power?

Under the current circumstances, I think that’s exactly right. But I’ll also quote the German philosopher Herbert Marcuse, who, when asked, “Who will make these decisions,” said, “Who makes them now?” And that’s worth bearing in mind.

These decisions are, in fact, being made now. They just aren’t being made by bureaucrats. They’re being made by Rupert Murdoch, by editors behind the scenes, by producers on TV programs, who themselves are responsive to all kinds of interested parties.

What’s the alternative? We either live in a free society, or we don’t. There does not seem to be much room for compromise here. I mean, there’s no marketplace of ideas that isn’t saturated with bad ideas, right?

I guess it’s a matter of degree. Again, I think the big problem now has to do with the pathologies of our political and economic system. Maybe what we need is for the political and economic system to change if we’re ever going to adopt a more sensible approach to the regulation of expression.

I also think most people fail to understand what’s meant by “free society.” No one thinks we don’t live in a free society because there are restrictions on public masturbation or public sex, right? There are always limits. We countenance all kinds of restrictions on freedom. It’s always about trade-offs, and what we’re ultimately willing to live with.

Well, I’d say free speech is crucial to individual liberty in a way that, say, public masturbation isn’t, but that’s another argument. It’s still not clear to me what you’d have us do? What is the solution here?

It’s important to recognize that most of what any of us believe about the world depends on intermediaries, people who guide us as to what we ought to believe because it’s true. I believe in evolution by natural selection, but not because I did all the experiments in the lab.

The big crisis of the internet era is that it has eliminated a lot of the traditional intermediaries, such as the New York Times or the Wall Street Journal or PBS or the BBC and so on. Those old intermediaries weren’t perfect, but they were better than what we have now. So I think we need better intermediaries that help people to sort out the world.

But again, I don’t anticipate a law being passed that shuts down Sean Hannity or Rush Limbaugh — we’re stuck with them. Which means we’re stuck with a public sphere filled with nonsense. So the short answer is that we’re screwed.

Look, the ideal political system is one in which everyone is wise and discerning and cares very deeply about the truth. But such a system is not possible, has never been possible, and so we must live in the least imperfect and most just society possible. Has liberal democracy not proven to be just that?

I’m not sure it’s that simple. Liberal democratic societies have certain values, and they’re mostly good. But the problem is having a capitalist economic system that pollutes the public domain and presents all sorts of obstacles to the intelligent expression and regulation of speech.

Under capitalism, at least the sort of capitalism we have now, the ruling class completely distorts our political process and the laws that get enacted. Until we do something about that, we’re not going to be in any position to hope that regulation of speech, let alone other aspects of law, will actually be conducive to human well-being.

This is ultimately why I don’t know what to do with your paper. I agree with your general diagnosis here, and yet we end up in a dead end.

Well, if I may reference one of my favorite philosophers, whom I know you like as well, Nietzsche said, “Sometimes the truth is terrible.” And I think there’s value in recognizing the truth of our situation, even if it’s terrible.

We have massive amounts of worthless, dangerous speech in the public sphere right now, and at the same time I can’t see any legal remedy that isn’t likely to be used for even more pernicious ends. But the situation we’re currently in is quite dire, and the fact that we have a monster child as our president is proof of that fact.

Given everything you’ve said, given the paucity of realistic solutions, what’s the point of an article like this? Why make the case against free speech if there aren’t any viable means of improving speech?

The fact that there aren’t solutions now isn’t a reason not to identify a problem. And of course, one point of the article is to challenge what I think is a slightly unthinking popular consensus. Free speech isn’t an inherently good thing; it can be good or it can be bad, and normally we think of the law as something that can step in when things can be both good or bad, like operating a motor vehicle, for example, which is why we have rules about it.

But in the case of speech, we have good reason to be worried about whether we’ll make the right rules. And therefore, the real question that we need to talk about isn’t about assuming the intrinsic value of speech. It’s about why we have a political and economic order that makes it impossible for us to regulate all the bad things about speech in a reliable way.

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Free Speech as a Right and a Way of Life

We must understand the philosophical foundations of the right to free speech to apply it to contemporary controversies.

Subscribe to the New Ideal podcast here .

Editor’s note: In May 2024, the Ayn Rand Institute Press released The First Amendment: Essays on the Imperative of Intellectual Freedom , featuring four in-depth essays by Tara Smith previously published in law reviews, and one by Onkar Ghate previously published in New Ideal . The book includes one essay by Gregory Salmieri written exclusively for the book. Drawing on Ayn Rand’s theory of individual rights, Salmieri’s piece identifies the philosophical foundations of the right to free speech and applies the principle to a number of controversies about free speech today (regarding “cancel culture,” social media platforms, and public education). Because it offers such fundamental guidance for addressing crucial cultural and political questions, we are republishing a newly edited version of it here.

The First Amendment to the United States Constitution protects freedom of speech from government interference, and much of the discussion of free speech in America revolves around this legal context. But there is a widespread view that to take advantage of these legal protections (and, indeed, to sustain them), we also need a culture of free speech . 1 Thus, self-professed champions of free speech inveigh not only against violations of the First Amendment but also against a wide range of private actions and policies. These include disruptive protests that silence speakers; content moderation by social media companies; sanctions by universities, corporations, and other institutions against those who express certain opinions; and “cancel culture” (i.e., attempts to trigger such sanctions by stigmatizing people for the opinions they’ve expressed).

Citing John Stuart Mill, these professed champions of free speech worry about an intellectually stifling environment in which all but a narrow range of opinions are stigmatized and driven to society’s margins. As an alternative, the Millians urge various nongovernmental institutions to adopt the sort of content-neutral policies that First Amendment jurisprudence requires of the government. The resulting “culture of free speech” they envision is one in which employers hire, fire, and promote without regard for employees’ opinions on controversial societal issues; universities take no cognizance of students’ opinions in deciding whether to admit and retain them, social media platforms make no discriminations about the content they host; and other businesses and organizations likewise refrain from discriminating on ideological grounds. Because, as we will see, such policies of neutrality are rarely tenable, those who aspire to such a free speech culture come to see their aspiration as a noble but unattainable ideal. They are led to the conclusion that freedom of speech cannot be an absolute – that is merely one value to be traded off against others.

Freedom of speech is a right – “a moral principle defining and sanctioning a man’s freedom of action in a social context.” 3 Rights can be violated by private actors as well as by governments, and the government’s function is to secure rights against such violations. Some of the nongovernmental actions decried by professed champions of free speech are violations of the right to free speech, but most are not – quite the reverse: they are exercises of this right. A genuine culture of free speech is one in which these acts are recognized as instances of free speech, rather than departures from it. It is a culture in which individuals value one another’s freedom not only to express opinions but to judge them, and to decide whom to associate with (or disassociate from) on the basis of such judgments. It is a culture in which individuals guard this freedom and utilize it to satisfy their needs for both ideological diversity and ideological alignment , forming a wide range of relationships, institutions, and communities with different purposes and different terms of association.

This is what I argue in this essay. In the first section, I elaborate on the nature of free speech as an individual right. In the second, I discuss government’s responsibility to respect and secure this right. In the remaining two sections, I discuss the value of intellectual diversity and the idea of a culture of free speech, rejecting the prevailing, collectivist approach to these issues and articulating an individualist alternative.

Freedom of Speech as an Individual Right

On the evening of May 25, 1892, a mob ransacked the offices of the Free Speech , a Memphis newspaper run by Ida B. Wells and James L. Fleming. The mob ran “Fleming out of town, destroyed the type and furnishings of the office, and left a note saying that anyone trying to publish the paper again would be punished with death.” 4 Wells describes the personal impact this way: “They had destroyed my paper, in which every dollar I had in the world was invested. They had made me an exile and threatened my life for hinting at the truth.” 5 The “hint” she mentions had come five days earlier, in an editorial she had written about the lynchings of eight black men over the course of the preceding week. Some of these men had been killed on the basis of “the old thread-bare lie that Negro men assault white women,” and she warned that if the white Southerners continued to use this pretext for lynchings, “public sentiment will have a reaction; a conclusion will then be reached which will be very damaging to the moral reputation of their women.” 6 On the morning of May 25, the Daily Commercial responded in an editorial that purported to speak for the white population of Memphis: “we have had enough” of “the fact that a black scoundrel is allowed to live and utter such loathsome and repulsive calumnies.” Later that day, the Evening Scimitar (which assumed that Wells’s editorial had been written by a man) proposed a course of action:

If the negroes themselves do not apply the remedy without delay it will be the duty of those whom he has attacked to tie the wretch who utters these calumnies to a stake at the intersection of Main and Madison Sts., brand him in the forehead with a hot iron and perform upon him a surgical operation with a pair of tailor’s shears. 7

Freedom of speech is freedom from the evil that was perpetrated against Wells, Fleming, Paty, Rushdie, and Charlie Hebdo staff, and against everyone who was terrified into silence by their attackers. This freedom consists in being able to speak one’s mind without fear that others will respond forcibly against one’s person or property. In the cases we have discussed, the force was wielded by terrorists; too often (as we’ll discuss) it is wielded by governments.

Force needn’t be deadly to violate the freedom of speech. Had Paty and Rushdie’s assailants sought merely to injure them, as punishment for speaking their minds, the same principle would have been violated, and others like Paty and Rushdie would still have been put in fear for their safety. Likewise, the mob that ransacked Wells and Fleming’s office would have violated their freedom of speech even if they hadn’t also threatened their victims’ lives. Wells and Fleming were violated when the mob destroyed the property they had devoted so much of their lives to creating. Their freedom of speech, in particular, was violated because the specific property that was destroyed – the paper’s type and furnishings – was their means of promulgating their ideas.

This same principle applies, though on a smaller scale, when self-styled “protesters” disrupt speeches they disapprove of. The venues for such speeches have generally been obtained by the speaker (or some sponsoring organization) for the purpose of hosting the speech, and others are admitted as an audience to hear it. To abuse one’s admission by disrupting the event is to trespass and to forcibly prevent the speaker (and sponsors) from using the means which are rightfully theirs for disseminating their ideas. The principle applies also when protesters forcibly interfere without entering the venue, as by creating excessive noise from an adjacent property to drown out the speaker or distract the audience. These actions too constitute forcible interference with the speaker’s use of his property to disseminate his ideas.

All the actions I’ve described as violating the freedom of speech would be violations of the victims’ rights even if taken for some purpose other than silencing them. Murder, vandalism, trespass, intimidation, harassment, and the interference with people’s peaceful enjoyment of their property are violations of rights, regardless of the motive, and the right to free speech doesn’t afford speakers any special protection that they would have lacked had they remained silent. No one is entitled to initiate force against anyone in the first place, and everyone has a right to be secure in his person and property. The right to free speech is merely the recognition that voicing an opinion as such never infringes on anyone else’s rights. The rights to liberty and property include the liberty to share one’s opinions and to use one’s resources to disseminate those opinions – e.g., by publishing a newspaper or delivering a lecture in a rented hall.

One person’s rights cannot be violated by another’s refusal to deal with him. Rights are principles for organizing society to enable individuals to interact only consensually, rather than by forcing themselves on one another. An interaction is consensual when each party participates voluntarily, under no threat from the other (except the “threat” of withholding such benefits as might result from the interaction). 12 The fundamental principle underlying free societies is that all relationships should be consensual – that no one may initiate the use of force, and that force may only be used in retaliation.

A right is a principle defining and sanctioning an individual’s freedom of action in a social context . 13 Freedom means freedom from other people who might interfere with one’s actions. So, what rights define is the scope of an individual’s freedom to act unilaterally, without others’ consent. Since rights are reciprocal, rightful actions cannot constitute interference with, or require the cooperation of, others. “Any alleged ‘right’ of one man, which necessitates the violation of the rights of another, is not and cannot be a right.” 14 The only obligation one person’s rights can impose on another is that of noninterference. Thus a person’s right to free speech cannot require other people’s participation as sponsors, enablers, or audience. It cannot entitle him to use their property as a platform or to harass them (demanding a hearing that they do not consent to give him). He has the freedom to express his ideas to an audience that’s willing to listen in a forum he owns (or that he uses with the owner’s consent). The right cannot be violated by anyone’s refusing to contribute to, listen to, or otherwise condone the relevant speech (even by refusing to continue associating with the speaker). The right cannot be violated by any form of boycott, blacklisting, ostracism, “cancellation,” or other social penalty. 15 The right can be violated only by initiating force against the speaker (including against his property). Whether such social penalties are just or unjust in a given case, any claim by the penalized that his rights have been violated is simply his assertion of an imagined right to force himself on people who want nothing to do with him.

For example, consider what Ida Wells came to think was the ultimate motive for destroying the Free Speech :

For the first time in their lives the white people of Memphis had seen earnest, united action by Negroes which upset economic and business conditions. They had thought the excitement would die down; that Negroes would forget and become again, as before, the wealth producers of the South – the hewers of wood and drawers of water, the servants of white men. But the excitement kept up, the colored people continued to leave, business remained at a standstill, and there was still a dearth of servants to cook their meals and wash their clothes and keep their homes in order, to nurse their babies and wait on their tables, to build their houses and do all classes of laborious work. […] The whites had killed the goose that laid the golden egg of Memphis prosperity and Negro contentment; yet they were amazed that colored people continued to leave the city by scores and hundreds. In casting about for the cause of all this restlessness and dissatisfaction the leaders concluded that the Free Speech was the disturbing factor. They were right. They felt that the only way to restore “harmony between the races” would be to get rid of the Free Speech . 16

This example highlights the power of disassociating from others as a means of both punishing injustice and protecting oneself from it. Disassociation is especially powerful when practiced by a large group, as in a boycott or blacklist. If an individual has any rights at all, he has this right to disassociate for any reason, including disagreement with another’s speech. The individual doesn’t lose this right when there are many others exercising it along with him, or when he encourages others to do so (as Wells did in her newspaper). 17 In short, there is a right to participate in what is now called “cancellation.”

Perhaps the most influential denier of the right to disassociate from others on the basis of their opinions is John Stuart Mill. This makes Mill an influential opponent of the right to free speech. 18 His reputation as a stalwart champion of free speech rests on his insights about an independent thinker’s need to engage with a wide spectrum of ideas – something that cannot be done in an environment where heterodox opinions are not expressed. I’ll turn to these aspects of Mill’s thought in the final two sections of this essay. What’s relevant for my present purposes is that he denies the crucial distinction between violations of the right to free speech and social sanctions of unpopular opinions (which sanctions are, in fact, exercises of this right).

The principle of individual rights marks the distinction between consensual interactions between individuals and interactions in which some individuals force themselves upon others. The fundamental right – the right to one’s own life – defines and sanctions the individual’s “freedom to take all the actions required by the nature of a rational being for the support, the furtherance, the fulfillment and the enjoyment of his own life.” 22 This means the individual’s freedom to live by his own judgment, using (and developing) his own means in support of his own ends (while respecting others’ freedom to live likewise). The freedom of speech is the freedom to express one’s opinions in the course of leading such a life. This includes one’s freedom to associate with others in support of their speech or to withdraw one’s sanction from their opinions by disassociating with them (in whole or in part). Conversely, the right to freedom of speech does not give everyone with anything to say a license to force himself upon those who do not wish to be his audience, his promoters, or his enablers. This is true however large the proportion of society that does not wish to deal with him and however unjust or imprudent their attitude may be.

Freedom of speech is never a license to violate other rights. Threats and incitement to violence no more fall within the protection of this right than do the instructions a mafia boss gives to a hitman. They may express or imply an opinion (as do all utterances, publications, and actions), but their essence is to initiate or facilitate a course of action, rather than to participate in an exchange of ideas. This is true of the passages quoted earlier from the Daily Commercial and Evening Scimitar that called for Wells’s lynching. These are not mere expressions of opinion: they are conspiracy to murder and mayhem. 23 The same applies to social media posts that targeted supposed blasphemers like Paty for attacks by Islamist terrorists. 24 Khomeini’s fatwa against Rushdie amounted to an act of war against the free world, and it ought to have been treated as such by world governments. 25 No doubt there are cases where it is difficult to determine whether an utterance is essentially an expression of an opinion (which would fall within the protection of the right to free speech) or constitutes a threat, fraud, defamation, harassment or other initiation of force (which would fall outside the realm of free speech). 26 But the difficulty in such cases is not a matter of balancing free speech against other potentially conflicting rights or interests. It is, rather, a matter of determining the nature of the utterance, given the full context in which it was made.

Commenting on the events at Berkeley, Ayn Rand wrote:

[T]here is no justification, in a civilized society, for the kind of mass civil disobedience that involves the violation of the rights of others – regardless of whether the demonstrators’ goal is good or evil. The end does not justify the means. No one’s rights can be secured by the violation of the rights of others. […] The only power of a mob, as against an individual, is greater muscular strength – i.e. , plain, brute physical force. The attempt to solve social problems by means of physical force is what a civilized society is established to prevent. 30

A society is free to the extent that it is governed by the principle of individual rights, and the freedom of speech is nothing more or less than individuals’ right to be free from forcible interference in (or in retaliation for) their expression of their ideas. Mobs like those that Rand describes (and which we see again proliferating throughout American society) are instances of such forcible interference with individuals’ freedom to speak and to live.

The Government’s Responsibility to Respect and Secure the Right to Free Speech

Because freedom of speech can be violated only by the initiation of physical force, which always violates other rights as well, special laws are not generally needed to secure this freedom. It is secured, rather, by the general laws that protect us from attacks on (and threats to) our persons and property. 31 When governments fail to protect the right to freedom of speech from infringement by private parties, it is by failing to prosecute those parties for violating these other laws – a topic we’ll return to later. Because separate laws are not needed to protect free speech from private actors, and because governments themselves often violate this right, free speech is sometimes characterized specifically as a right individuals hold against the government. Onkar Ghate, for example, has described free speech as “an individual’s right to express his ideas without governmental interference, that is, without governmental suppression or censorship.” 32 Such characterizations are natural especially in the United States where so much of the discussion of free speech centers on the First Amendment.

As should be clear from the previous section, I conceive of the right more broadly as a right to be free from forcible interference in (or in retaliation for) expressing one’s ideas, whether this force is initiated by a government or by private actors. However, much of the need to conceptualize it as a distinct right comes from the fact that governments so often pass laws abridging it. To defend the right, we must be on guard against the confusions and rationalizations that lead lawmakers and their constituencies to think it is proper to wield force to silence people, or to compel them to support or refrain from supporting the expression of certain ideas.

In all such fields, the only position consistent with the right to free speech is abolitionism. The entire public education system (including public financing of higher education) should be abolished, as should such agencies as the National Institutes of Health and the National Science Foundation. This abolition could take the form of simply eliminating the present institutions in the expectation that private ones will arise (or expand) to perform those of their functions that are legitimate. Or it could take the form of privatizing the existing institutions by cutting them off from governmental funds and authority. Presently there is no political constituency for abolition (of either sort). This unhappy fact gives rise to many questions for advocates of free speech: Of the various policies these institutions might adopt on various issues, which are most oppressive, and which are less so? What near-term goals and strategies should a movement advocating freedom in education (or scientific research) adopt? How should an individual teacher, student, or researcher navigate the existing system? These are all questions about how to navigate and mitigate an ongoing violation of individual rights, and they must be regarded as such if we are to have any hope of answering them in a way that is consistent with the principle of free speech.

In addition to violating freedom of speech by censoring and by establishing opinions, a government also violates the freedom of speech when it restricts individuals’ freedom to disassociate from speech and speakers they disapprove of. Consider, for example, the recent Florida and Texas laws (currently under judicial stays) that prohibit social media platforms from removing or deemphasizing users or posts based on their viewpoints. 37 Under the pretext of defending users’ free speech, the laws compel the companies to promote, participate in, or condone speech that they have every right to disassociate from.

Governments can also violate the right to free speech by exercising their legitimate powers in a way that discriminates against individuals for holding or voicing certain opinions. A government violates freedom of speech, for example, if it enforces noise ordinances more vigorously against people who are noisily expressing unpopular opinions than it does against people who noisily express favored opinions.

In addition to actively violating individuals’ freedom of speech in any of the ways we have discussed, governments are sometimes complicit in violations by private parties. This happens when a government fails to vigorously prosecute those who initiate force to silence others, thereby allowing these criminals to impose a reign of terror over those who disagree with them. Such governmental inaction can be motivated by officials’ (or voters’) sympathy with the terrorists. This is likely what happened in the attack on the Free Speech in Memphis. As far as I have been able to ascertain, no one was prosecuted for that attack, just as no one was prosecuted for committing the lynchings on which the Free Speech had reported. Wells believed there was no prosecution because “every white man of any standing in [Memphis] knew of the plan and consented to the lynching,” and that “the criminal court judge himself was one of the lynchers. Suppose we had the evidence; could we get it before that judge? Or a grand jury of white men who had permitted it to be?” 40 If Wells’s belief was correct, then it was not just a private mob, but also the municipal government of Memphis, that was responsible for murdering the lynched men and for destroying the Free Speech .

To protect our rights, including freedom of speech, governments must vigorously investigate potential conspiracies to violate these rights, whenever reasonable suspicion exists. However, such suspicion often arises in connection with organizations, movements, and subcultures devoted to controversial opinions – just the sorts of group whom we have reason to worry that the government will persecute on the grounds of their heterodox opinions. Examples in American history include the Ku Klux Klan, the American Communist Party, various factions within the civil rights movement and the countercultural movements of the 1960s and ’70s, and certain mosques and other institutions serving religious minorities. These organizations have been subject to investigation and counterintelligence operations by the Federal Bureau of Investigation, and there is a well-documented record of abuses on the FBI’s part, which makes civil libertarians rightly concerned about such investigations. 45 To prevent abuses, procedures must be established to ensure that investigations of heterodox groups are indeed investigations (rather than attempts to harass or influence the groups) and that they are properly predicated on evidence (in accordance with standards that are applied uniformly to all ideological communities).

Defenders of free speech should not engage in knee-jerk calls for, or reactions against, investigations into heterodox groups. What is needed here, as in all areas of law, is objectivity – which means well-defined methods and standards for such investigations and prosecutions, and legal remedies for those who have been unjustly targeted. In the quest for such objectivity many difficult questions will arise, but these questions are not specific to freedom of speech. They are persistent concerns throughout the structure of a justice system wherever prejudices, ideological or otherwise, may lurk. For example, even when freedom of speech is not involved, prejudices can lead authorities to overlook (or underprioritize) crimes against members of disfavored groups or to infringe on the rights of suspects from these same groups. When forming any legal system, such concerns can be addressed by erecting checks and balances of various sorts, but that doesn’t mean fundamental rights such as the right to free speech are being balanced against one another. Rather it is governmental resources and the incentives and powers of various investigative bodies and legal parties that must be balanced in order to preserve the rights of all concerned.

The right to freedom of speech (like any other right) does not create a zone of anarchy in which a government may not function or investigate. 47 Rather, the right defines a zone in which an individual may act unilaterally, and it obligates government to take all necessary actions to secure the individual’s freedom of action against forcible interference by others. 48 The government’s function requires it to operate everywhere within a society, but to do so in single-minded pursuit of its proper function, constrained by well-defined rules ensuring that, in endeavoring to protect one individual’s freedom, it does not intrude on anyone else’s.

Because the proper function of government is limited to securing rights, any government that transgresses this limit (e.g., by providing services such as education, transportation, or healthcare) necessarily violates rights. We’ve discussed how the government specifically violates the freedom of speech when it provides services that involve the promulgation of ideas, such as public education, public broadcasting, or the public financing of research. It also violates rights when it operates public spaces where people can congregate to discuss and disseminate ideas. Since the government is an agent of everyone in the society, the use of governmental resources to facilitate any speech by private parties, violates dissenters’ right to disassociate from that speech. This rights violation is compounded when a government favors the dissemination of some ideas over others. Therefore, the First Amendment is properly interpreted to demand ideological neutrality from the government in such matters as deciding what sorts of speech are permitted on public property.

By contrast, private individuals (or nongovernmental institutions) do not limit anyone’s freedom of speech when their policies lack the ideological neutrality we rightly demand of the government. Publishers, broadcasters, social media companies, and private educational institutions do not infringe on anyone’s freedom when deciding to whom they will grant or deny use of their platforms. Likewise, employers, service providers, customers, and financiers cannot violate anyone’s freedom by their decisions to deal with some parties and not others. This is true even when these decisions are made on ideological grounds, and even when they are made unjustly. Far from being infringements of free speech, such decisions are alwaysexercises of this freedom, since the freedom to speak includes the freedom to support speech of which one approves and to withdraw one’s support from speech (and speakers) of which one disapproves. Even foolish or unjust policies adopted by nongovernmental actors concerning speech fall squarely within the right to free speech, in the same ways and for the same reasons that false or unjust speech falls within the protection of this right. Because of this, any use of state power to compel or encourage private institutions to adopt a policy of ideological neutrality violates the right to free speech (and the First Amendment to the U.S. Constitution).

The Value of Intellectual Diversity

Among those who grasp that private individuals and institutions have the right to engage in ideological discrimination, many still think that there is some moral imperative for employers, and such institutions as social media companies, communications utilities, financial institutions, and private universities to nonetheless observe something like the ideological neutrality that the First Amendment demands of government agencies. It is widely held that institutions that value free speech should abstain from discriminating among their associates (employees, customers, partners, etc.) on the grounds of their opinions, because upholding ideologically neutral terms of association will foster diversity and a culture of free speech(both within the relevant institution and in the larger society of which it is a part).

This is a mistake. It is true that ideological diversity is valuable in many contexts, and there may be some specific organizations whose missions would be best served by a policy of ideological neutrality, but general presumptions in favor of such policies drop the context that gives rise to this value and amount to demands that organizations sacrifice their missions. Rather than being moral absolutes, intellectual diversity and welcoming heterodoxy are potential values to be traded off against others in crafting worthwhile associations. Using the term “free speech” for these suggests that free speech itself – the right to free speech – is not an absolute, but just one of many competing claims that must be pragmatically balanced against one another. In order to defend actual free speech, therefore, we must conceptualize intellectual diversity and the practice of welcoming heterodoxy as values distinct from this principle.

We can begin by considering John Stuart Mill’s eloquent account of why we each need to be conversant with ideas very different from our own:

He who knows only his own side of the case, knows little of that. His reasons may be good, and no one may have been able to refute them. But if he is equally unable to refute the reasons on the opposite side; if he does not so much as know what they are, he has no ground for preferring either opinion . . . Nor is it enough that he should hear the opinions of adversaries from his own teachers, presented as they state them, and accompanied by what they offer as refutations. That is not the way to do justice to the arguments, or bring them into real contact with his own mind. He must be able to hear them from persons who actually believe them . . . He must know them in their most plausible and persuasive form; he must feel the whole force of the difficulty which the true view of the subject has to encounter and dispose of; else he will never really possess himself of the portion of truth which meets and removes that difficulty. 49

Mill’s point is that for one’s convictions to constitute knowledge, as opposed to mere opinion, one must have engaged with the arguments against those convictions, and doing this requires encountering the strongest of these arguments presented as powerfully as possible by sincere advocates. This implies that any context in which a particular view has been wholly excluded from consideration is destructive to knowledge, even in cases where the excluded view is false . Such contexts undermine one’s ability to form genuine knowledge. (The situation is even worse, of course, if the excluded view turns out to be true.) Since knowledge requires considering contrasting ideas, a knower requires an intellectually diverse environment.

Moreover, since reasoning requires following the evidence wherever it leads, genuine reasoning is incompatible with the attempt to uphold any dogma. Someone whose thinking is governed by the premise that she must reach a certain conclusion and not another, or that she must not question a certain premise, is not endeavoring to know what’s true. Only free thinking – where the range of admissible conclusions hasn’t been fixed in advance – is genuine thinking. A person cannot, therefore, function as a thinker insofar as she is dependent on maintaining a position within a social institution, which position is contingent on her reaching (or not reaching) specific conclusions.

All the values we seek from human relationships derive ultimately from the thinking of each party. This is true for every sort of association – for business partnerships, commercial transactions, employment relations, friendships, marriages, clubs, educational institutions, etc. All genuine thinking is thinking for oneself , and it is to be expected that differences of opinion will emerge when individuals think for themselves, even on issues where only one answer can be correct. Thus, disagreement is inevitable in any worthwhile relationship or organization, and people cannot work well or live well insofar as they depend on associations that are contingent on their toeing a party line. This is why social environments that welcome differences of opinion are valuable: they support independent thinking, which is the source of all the values we seek to gain from one another.

Such an intellectual environment is a value to each of us as individuals, and we must each pursue it in our own associations and in the context of all our other values – a context that includes the value of the uniformity of opinion that underlies any joint endeavor. However, the values of intellectual diversity and welcomeness to heterodoxy are generally discussed in collectivistic terms and in a way that drops this crucial context. Institutions such as schools, social media companies, providers of financial and communications services, and employers are regarded as societal resources which must be run in certain ways to fulfill a societal need to welcome (or tolerate) heterodoxy. This is the view that generally lies behind the calls for such institutions to embrace “free speech.” I will discuss some of the controversies regarding “free speech culture” and the policies of such institutions in my next section. But let’s first consider how we as individuals living in a free society might pursue the value of an intellectual environment that exposes us to diverse ideas and that welcomes any heterodox conclusions we may reach.

Each of us has much to gain from interacting (directly or indirectly) with people who hold ideas with which we disagree, and therefore we each have reason to support, patronize, or participate in institutions (schools, forums, social groups, libraries, etc.) that enable such interactions. However, individuals will differ in their specific needs for intellectual diversity and how these needs relate to their other values and concerns. We should, therefore, expect there to be a variety of institutions catering differently to different people in different contexts.

For example, a biology researcher will want access to a library or bookstore stocked with a wide range of books in her field, including many that she disagrees with. She’ll likely be more interested in disagreements of detail (e.g., about the evolutionary history of a specific organism) than in works advocating for creationism, phrenology, or race science, but she’ll want access to these, too, on occasion. She may, however, want works expressing some of these views to be excluded from the library she visits with her child. She’ll likely prefer to work for an employer who welcomes the forthright expression of disagreements on scientific issues, but she may find certain approaches to biological research so misguided that she sees no point in working for or with their proponents. Because she’ll be motivated to work with those collaborators who can most help advance her research, she probably won’t be much interested in their political or social views, and she’ll probably prefer an employer who doesn’t generally discriminate on such grounds, because she knows such discrimination could prevent her from working with people who might have a lot to offer. However, she may find certain views so abhorrent that she’d prefer a workplace that excludes their proponents entirely. When she’s looking for an advocacy organization or political party to join, she might prioritize robust ideological alignment; but she may be (largely or wholly) unconcerned with the political, social, or religious views of her grocer or swim instructor. There are different purposes for which our biologist might want to use social media – to connect with colleagues in her field, to monitor current events or follow the debates of the day, to connect with old friends and share anecdotes, etc. For different uses she might prefer different sites with different content policies.

Every individual will form some such constellation of values and attitudes, placing different weight on uniformity or diversity of opinions in different contexts. Some constellations of values will be irrational, unjust, and self-destructive. But many different constellations will be fully rational, especially if held by people in different circumstances with different levels of knowledge, different resources, and different goals. Among those constellations that are less than fully rational, some will go wrong in relatively small ways, whereas others will be foolish and vicious. If all these individuals with their different constellations of values concerning ideological alignment and diversity are secure in their rights, such that each can choose to deal with each of the others or not, they will be able to use this freedom to negotiate terms of association that work for them.

Thus, in a free society, we should expect different organizations and institutions to emerge reflecting different values. Since (for the reasons Mill well described) knowledge requires some engagement with the full range of opinion on contentious subjects, those who value knowledge will create market demand for libraries, bookstores, and forums of various sorts that enable access to and dissemination of even the most disfavored views. But other forums will try to avoid offending anyone, and there will be everything in between.

Every cooperative endeavor presupposes specific points of agreement. For example, if our biologist seeks a collaborator for a research project on a specific organism’s evolutionary history, a Young Earth creationist wouldn’t be suitable, because the project presupposes the theory of evolution. Her project will also presuppose many more specific premises about the outlines of life on earth, about the specific species she’s studying, about which research methods are promising, etc., and someone who disagrees with these presuppositions would not be suitable. This is true even though, as a biologist, she might benefit from being exposed to challenges to her presuppositions. If she lived in a society in which the theory of evolution was forcibly insulated from criticism, that would make it difficult for her to know that the theory is true (because she would be prevented from finding, engaging with, and evaluating the best arguments against the theory). Likewise, if despite living in a society with evolution skeptics, the biologist never gave a moment’s thought to their view (and, in this case, it doesn’t take much more than a moment), she may not be justified in her confidence in the presuppositions of her field. The same holds for the more specific presuppositions of her specific research project, many of which are bound to be controversial within her field. For her to be rationally confident in her own position, she needs to be free to learn about and consider alternatives, and she needs to take advantage of that freedom. But part of taking full advantage of that freedom is rejecting alternative approaches which she thinks are mistaken and building a research project based on the ideas and methods she judges to be right. As we’ve framed the example, pursuing this project will require finding a like-minded collaborator who agrees with her on the relevant points.

Just as her project would be undermined by a collaborator whose ideas were inconsistent with the biological premises underlying her project, so would it be undermined by a collaborator whose opinions prevented him from interacting with her respectfully. His viewing her as incompetent or dishonest would make him unfit for the role. This is true whether he views her this way because of some specific belief about her as an individual, or because he holds some such generalization as “women are no good at science,” or “white people are exploiters,” or “only researchers who studied at Harvard understand punctuated equilibrium.” Our biologist cannot afford to be indifferent to potential collaborators’ opinions on such matters, and there is not always a bright line to be drawn between such opinions and related political, religious, or ideological convictions. Of course, the biologist’s project could also suffer if she rejects a potential collaborator because she falsely infers from his membership in a certain church or preference for a certain political candidate that he won’t respect her or share the relevant scientific convictions.

In choosing a collaborator, she needs to find someone who agrees with her about what’s needed to further the project, and she needs to allow such disagreements as are compatible with (and conducive to) this joint undertaking. Just which disagreements fit this bill will depend on innumerable factors, some of which may be idiosyncratic to the people involved. For example, if the biologist and potential collaborator have especially good interpersonal skills, they may be able to work together despite certain disagreements that would doom another pair of collaborators. Similarly, a pair of collaborators who are especially good at resisting confirmation bias might be needlessly slowed down by internal disagreements of a sort that another pair might need to help them avoid this cognitive pitfall.

There is no principle demanding that our biologist close her eyes to a potential collaborator’s opinions (or any special subclass of his opinions), nor would it be prudent for her to do so. The relevant principles are that she cannot rationally expect any collaborator to agree with her on everything or on nothing , and she should not place more value on any agreements or disagreements than is warranted by the full context of her own values, purposes, and circumstances.

Everything we’ve said about this one researcher’s relation to a potential collaborator applies also to all of the relationships inherent in any large organization – such as a business, a university, or a social network. Each such organization has its own mission and values, which must be implemented in its policies and corporate culture if it is to be successful. And each individual associated with the organization will approach the association from the standpoint of his own hierarchy of values. An organization that demanded too much agreement would have trouble finding and attracting suitable associates, and those it did attract would be unable to do their best work. But an organization would also undermine itself by welcoming associates whose opinions are incompatible with its purpose and values. For any organization, there will be opinions that are directly incompatible with the organization’s mission – as, for example, opposition to abortion rights is incompatible with the mission of Planned Parenthood, and atheism with the mission of the Catholic Church. There will also be opinions that are incompatible with the sort of corporate culture the organization regards as necessary to its mission. For most organizations this will include a culture of mutual respect that could be undermined, for example, by the opinion that people of African descent are stupid or that people of European descent are oppressors.

For almost any role in any group or organization, there are things that someone would be within his rights to say, but that would make him unsuited for that role, such that the organization could not tolerate this speech without undermining its purpose. Such speech is within the person’s rights in that it would be wrong for anyone (whether a governmental actor or a private party) to forcibly prevent him from saying it. But this right does not obligate the organization to allow the speech on its platform or to associate with the speaker. For example, many social media sites that fancy themselves free-speech forums do not allow users to post pornographic content, even though such content is (properly) legal. And it makes sense for the platforms to exclude pornography, given the sorts of communities they’re trying to build. Likewise, a law firm may have strong reasons not to retain an associate who has publicly voiced sympathy with the October 7 attacks on Israel – doubly so if it serves many Jewish clients who would interpret these remarks as antisemitic (as well as generally vile). 51 And a university may not wish to employ a teacher whose racist remarks (voiced outside of class) raise questions about her ability to treat all students with respect and judge them objectively. All of these potentially disqualifying sorts of speech fall within the speaker’s freedom of speech, in that it would be wrong for governments or private individuals to retaliate against them forcibly. But in each case, there’s a reason for the organization to make such speech grounds for disassociation. In some cases, there are also reasons pulling in the opposite direction.

Because organizations differ in their missions and constituencies, it should be expected that they will adopt different policies and develop different cultures, with some welcoming a wider range of opinions than do others. There are some approaches to this issue that would be irrational, unjust, and self-defeating, but there are a range of different approaches by which organizations could rationally pursue a valid mission and attempt to attract and retain associates. How wide a range of opinions an organization welcomes among its employees or associates (and what policies it institutes regarding expressions of these opinions in various contexts) no more reflects its degree of commitment to free speech than the variety of a retailer’s wares reflects the degree of its commitment to free trade.

Such variation in the policies and cultures of organizations is an expression of the freedoms of speech and association and a consequence of the pursuit by free individuals of their values. These values include (but are not limited to) the value of an environment that welcomes and fosters intellectual diversity. It is up to each of us to exercise these freedoms to seek these values for ourselves.

Individualists who share Mill’s concerns about an intellectually stifling uniformity of opinion can work to create new institutions (institutes, businesses, universities, libraries, journals, grant-making bodies, etc.) to foster heterodoxy. There are many forms such institutions can take. For example, there are organizations, like the Ayn Rand Institute, dedicated to promoting specific ideas (or research programs) that lie outside the ideological mainstream. A heterodoxy-promoting individualist might support the work of some such organizations, because he thinks their ideas (whether he agrees with them or not) fill an important gap in the discourse. Our heterodoxy-supporting individualist could also support publications like the Journal of Controversial Ideas that try to provide a home for ideas that have little in common except for falling far outside of the mainstream in one direction or another. 52 Or he could try to forge an institution that facilitates exchange between people of differing viewpoints, making room for marginalized views without catering specifically to them. Examples of this approach include Discourse magazine, the Academy of Ideas (https://academyofideas.org.uk/), and the new University of Austin.

Finally, the individualist looking to support intellectual diversity can work to create institutions that facilitate the wide and rapid sharing of content, so that speakers of all sorts can more easily connect with an audience. By any measure, the most historically successful initiative of this last sort is the internet. The World Wide Web and most of its social media platforms were created by people who were motivated in part (at least) by the idea of empowering a wider range of people to share and discover ideas.

Anyone worried about a lack of intellectual diversity today should reflect that no person in history has had as easy access to as wide a range of ideas as anyone can find for free on YouTube, X or Reddit. Many of the people today who resent mainstream cultural institutions for marginalizing the opinions they’ve been exposed to on social media would have, in earlier eras, remained wholly ignorant of opinions outside of the mainstream. The specific currents of censoriousness in the world today are largely caused by the ease of exchanging ideas online. Some are backlashes by cultural elites against the mainstreaming of previously marginal streams of thought. Others, such as the “Twitter mobs” that have called for the hasty “cancellation” of those who offend against various au courant leftist strictures, are made up of scolds who have organized through social media to exert social pressure that would not have been possible to them in the past. These forms of censoriousness (however unjust some of them may be) are aspects of an intellectually diverse society, rather than signs that we lack one.

A Culture of Free Speech

I have treated intellectual diversity (and the sort of environment that fosters it) as one value among others that free individuals can pursue in their associations with one another. But, as I mentioned earlier, most discussions of this value proceed as if the needs of society as a whole place special obligations on certain societal institutions to embody or foster a “culture of free speech.” To develop an individualist alternative, I’ll focus on two sorts of institutions that have loomed large in recent free-speech controversies: social media platforms and universities. I’ll expose the collectivist premises dominating thought about these institutions and I’ll explain the individualist perspective on these issues – the perspective that, when embodied in a society’s institutions and mores, constitutes a genuine culture of free speech.

It is striking that Musk, who prides himself on his “first-principles thinking” in business, did not define the “free speech principles” to which he thinks Twitter should adhere. The nearest thing I have found to a public exposition of these principles in the months surrounding the acquisition is this statement:

By “free speech,” I simply mean that which matches the law. I am against censorship that goes far beyond the law. If people want less free speech, they will ask government to pass laws to that effect. Therefore, going beyond the law is contrary to the will of the people. 55

This is no principled stand at all. It simply says that the platform shouldn’t “censor” – i.e., refuse to provide a platform for – much legalcontent, without saying anything about how much or how this can be determined. 56 Notice too Musk’s indifference to the actual issue of free speech in his blithe acquiescence to limits on free speech imposed in accord with “the will of the people.” Of course, it is precisely such limits that the First Amendment prohibits. 57 The idea that the will of the people should determine how a social media platform operates reflects the collectivist premise that the platform, though legally held as private property, is essentially an organ of humanity as a whole, which must somehow be operated by humanity’s general will in the service of its collective good.

This same collectivist view dominates thinking about educational institutions and shapes discussion of speech there. The American Association of University Professors has long based its advocacy of “academic freedom” and the tenure system on the premise that “institutions of higher education are conducted for the common good and not to further the interest of either the individual teacher or the institution as a whole.” 58 The Association acknowledges that there are some “proprietary institutions” whose purpose is “to subsidize the promotion of opinions held by the persons, usually not of the scholar’s calling, who provide the funds for their maintenance.” But it concerns itself only with “ordinary institutions of learning” whose purpose is “to advance knowledge by the unrestricted research and unfettered discussion of impartial investigators.” It holds that any such institution, whether run by the state or as nongovernmental entities, “constitutes a public trust” charged with carrying out a “threefold function”: (1) “to promote inquiry and advance the sum of human knowledge,” (2) “to provide general instruction to the students,” and (3) “to develop experts for the various branches of the public service.”

With universities as with Twitter, a supposed public function is thought to require institutions to provide people with a platform, regardless of the opinions they express. Because these non-governmental institutions supposedly serve a public function, they are expected to practice the sort of ideological neutrality that the law demands of government bodies. As a result, many of the individuals involved with institutions feel ill-used by policies that give them no option but to interact with people whose opinions they regard as odious, if they are to deal with the institution at all. And the institution’s interest in maintaining its relations with these aggrieved associates is at odds with its commitment not to discriminate against the speakers whom they find objectionable.

In the first instance, we see Musk’s collectivist conception of the need for intellectual diversity leading him to conclude that “free speech” cannot be an absolute. In the later episodes, we see his collectivist view of Twitter as a public good, leading to the demand that advertisers sacrifice by continuing to run ads there, regardless of whether they judge that these ads will benefit their companies.

The problems Musk faced in his attempts to operate a “free speech” platform are not new. In 2012, a decade before Musk’s purchase, Twitter regarded itself as “the free speech wing of the free speech party.” 66 It professed a “John Stuart Mill-style philosophy” according to which “the most effective antidote to bad speech was good speech,” and so they engaged in little content moderation. By 2017 they had come to regard this philosophy as naive and felt a need “to take steps to limit the visibility of hateful symbols, to ban people from the platform who affiliate with violent groups.” 67   In 2019, (then) CEO Jack Dorsey said, “I don’t believe that we should optimize for neutrality . . . . Ultimately, I don’t think we can be this neutral, passive platform anymore.” 68 During the same period, Facebook and YouTube also began to moderate content on their platforms more aggressively.

There are many questions about the wisdom of various decisions made by the social media platforms in this difficult time. There is also evidence that some of these decisions were coerced by government actors, which would certainly be a violation of the platform’s right to free speech and of the First Amendment. But even apart from such violations, these platforms faced a difficult challenge, which ought to have been understood and faced in individualistic terms, but which was too often misconceived along collectivist, Millian lines. Essentially these platforms are in the business of facilitating associations pertaining to speech . In particular, they connect content providers with audiences and advertisers. The naive Millian approach that many of these companies took prior to 2015 was not a matter of overvaluing “free speech” or diversity of opinion. Rather, it represented too crude a view of what makes the relevant associations valuable to all the parties involved – including the speakers, the audience, the advertisers, and the owners and employees of the platform.

Sadly, McKenzie couched this decision in terms of the Millian package-deal that equates demonetizing publications (a form of disassociation) with censorship and a lack of support for individual rights and civil liberties:

I just want to make it clear that we don’t like Nazis either – we wish no-one held those views. But some people do hold those and other extreme views. Given that, we don’t think that censorship (including through demonetizing publications) makes the problem go away – in fact, it makes it worse. We believe that supporting individual rights and civil liberties while subjecting ideas to open discourse is the best way to strip bad ideas of their power. We are committed to upholding and protecting freedom of expression, even when it hurts. 80

But, of course, no one has an “individual right” to Substack’s services if Substack doesn’t want to provide them, and Substack is no more respecting the Nazis’ liberty by continuing to serve them than it would be infringing on their liberty if it decided to kick them off the platform. The issue is not one of liberty, but of the company’s view that there is great value in a content-neutral platform where even the most odious ideas can be voiced.

What distinguishes Substack from failed companies that also imagined themselves to be providing “free speech” platforms is that Substack has managed to create a network of mutually beneficial interactions among the members of the many different communities it hosts. Consider by contrast the case of Parler. It billed itself as “the premier global free speech platform” and promised to host content that was not welcome elsewhere, but unlike Substack, which hosts a wide range of creators, Parler was never more than a ghetto for marginal voices on the political right. 81 It failed because it relied for all its essential services on companies like Amazon, Apple, and Google, which did not want to be party to the content it hosted. Those companies all withdrew their services in the wake of the storming of the U.S. Capitol on January 6, 2021, when Parler was becoming popular among members of the MAGA movement. 82 The companies wanted nothing to do with Parler, because they thought its lax content-moderation policies made it a vector for incitement to violence. Parler denied that violence was being incited on its platform and complained that it was made a scapegoat. 83 Even if it was treated unjustly, the fundamental cause of its failure was that it had not found (or, seemingly, even sought) a way to build the sorts of relationships necessary to sustain a service that platforms even stigmatized speech. All Parler had to offer the parties on whom it relied were Millian demands for sacrifices on the altar of the supposed rights of people whom these parties regarded as deplorable and dangerous.

By contrast, Substack has thus far managed to retain mainstream content while also hosting respectable radicals as well as sundry crackpots and bigots. Its approach to content-moderation and online association enables readers, advertisers, and commentators to associate with the content that interests them without having to sanction content that they deplore – except in the very minimal sense of not boycotting Substack for continuing to provide services to the deplored customers. Creators’ willingness to deal with Substack on these terms doubtless owes a lot to their recognizing (with Mill) the value of intellectual diversity, to their being tired of a “cancel culture” that regards many widely held views as beyond the scope of acceptable debate, and to their valuing the assurance that they will not be deplatformed if they offend against some trendy shibboleth. But the value they get from Substack lies not simply in its refusal to deplatform (even) odious speech, but in its having developed policies that facilitate the exchange of heterodox ideas, and in having fostered a diverse community of creators and consumers who support these policies.

Substack promotes intellectual diversity by facilitating individual customers’ individualistic pursuits, rather than by calling on them to sacrifice their own values for an alleged public benefit. The same is true of other social media platforms, including X, YouTube, Facebook, and Reddit. When they provide value, it is by facilitating relationships through which individuals can advance their own values, rather than by adhering to impracticable principles that purport to serve a greater collective good (but that produce only strife).

The disciplinary actions against Wax and Dean may be breaches of their contracts, and it may be wise for some institutions of learning to have tenure policies that protect faculty from suffering adverse employment consequences for expressing stigmatized opinions. But the AAUP’s position goes far beyond this. Recall its view that any educational institution not explicitly devoted to the promulgation of some narrow creed is duty-bound to have a tenure policy protecting “academic freedom.” On this view, no institution of higher education could morally take into account whether its faculty’s pronouncements make students feel unwelcome and unsafe, repel donors and parents, or otherwise conflict with the values people seek from their association with the institution. Either these people are also duty-bound to continue associating with the university (violating their convictions and sacrificing their interests) or else they are free to disassociate, but the trustees of the institution are duty-bound to let the institution be blackballed along with its most odious professors.

Far from being anomalous, Wax’s and Dean’s comments are precisely the sort of speech that “academic freedom” has always been intended to protect. The AAUP was founded by John Dewey and Arthur Lovejoy. The latter was one of five professors who had resigned their positions at Stanford in 1900 to protest the university’s dismissal of economics professor Edward Alsworth Ross – an affair that provided much of the impetus for the AAUP. Ross was an anti-capitalist bigot who would go on to argue that society needed to “muzzle” Jesuits and business magnates (whom he referred to as “men of prey”). 88 In a story about a mass meeting of citizens asking for “protection from the influx of Asiatic hordes,” the San Francisco Call and Post (of May 8, 1900) reports that Ross

declared primarily that the Chinese and Japanese are impossible among us because they cannot assimilate with us; they represent a different and inferior civilization to our own and mean by their presence the degradation of American labor and American life. We demand a protection for the American workmen as well as for American products. . . . And should the worst come to the worst it would be better for us if we were to turn our guns upon every vessel bringing Japanese to our shores rather than to permit them to land. 89

Jordan’s initial argument against firing Ross embodies the especially strong reasons universities have for valuing the sort of job security that makes faculty members comfortable exploring controversial opinions. And many do consider this episode a black mark on the university’s record. It is notable however that Stanford went on to become one of America’s premiere institutions of higher education. This may be despite Ross’s firing, or it may be in part because there were people (faculty, students, parents, and donors) who preferred to be affiliated with a university that didn’t harbor professors who would prefer to murder immigrants en masse than to admit them. Likewise, there are people today who would regard it as a selling point if a university’s faculty did not enthuse over the rape and murder of Israelis or demean students of certain races. Undoubtedly there are also professors who, though they may abhor some of these opinions, would prefer to work at a university where voicing them is not a firing offense; and there are students and donors who may regard the presence of faculty with such views as a bracing form of intellectual diversity.

Contra the AAUP, universities are not public trusts, and there is no single policy they should all adopt regarding the range of speech it will tolerate from its faculty or students. Rather, each university is a distinct community of faculty, students, and other interested parties. It is neither possible nor desirable to isolate the members of this community from the economic incentives that derive from the constellation of facts that lead people to value (or disvalue) the university. These facts include the professors’ expressions of their opinions on controversial issues. The trustees and administrators of each institution can and should craft policies (and an institutional culture) that shape these incentives in support of its specific mission. This mission isn’t a function the institution serves for the public at large, but a function it plays for the individuals who choose to associate with it in one capacity or another. Most notably, universities have students , and different universities may cater to different student populations with different needs and values. To choose an obvious example, a university that finds a niche educating the children of Japanese immigrants would be wise not to tolerate faculty like Ross, and one that caters largely to Jewish students would do well to stay away from Dean.

Most universities’ missions include making an impact of some sort on the world. For example, Stanford was founded

to promote the public welfare by exercising an influence in behalf of humanity and civilization, teaching the blessings of liberty regulated by law, and inculcating love and reverence for the great principles of government as derived from the inalienable rights of man to life, liberty, and the pursuit of happiness. 92

Such a mission doesn’t make a university a “public trust” in the manner that the AAUP imagines. Rather, the mission is a joint project of those individuals who choose to work together to pursue it. And this choice presupposes a common understanding (which may develop and alter over time) of the mission and how to advance it. Thus we should expect that even universities with similar missions may make different decisions about how to pursue intellectual diversity in the context of their other values.

For example, the University of Chicago and Princeton University have similar missions, and both claim to prioritize (what I am calling) welcoming heterodoxy. 93 But over the course of decades, they have adopted different policies and formed different cultures. The University of Chicago has a policy of “institutional neutrality” on social and political controversies. 94 Presidents of Princeton, thinking that universities are inherently value-laden, have argued that such neutrality is impossible or undesirable and so have instead favored a policy of “institutional restraint.” This has led Princeton to participate in some divestment campaigns that the University of Chicago did not, and to be more supportive of certain student protest movements. 95 Potential students, faculty, and donors are aware of such differences between universities and can consider them (in the context of all their other relevant values) when deciding which institution to affiliate with.

Whatever specific policies and attitudes a given university, social media platform, or other institution adopts, they will not constitute a culture of free speech unless those adopting them do so by self-conscious choice, owning the fact that they are individuals exercising their own rights in pursuit of their own values. This entails their valuing their right to make this choice, which includes valuing their right to choose differently .

An excellent example of this approach in a corporate setting is Coinbase CEO Brian Armstrong’s 2020 blog post in which he clarified the company’s culture and laid out norms for keeping divisive cultural and political issues outside of the workplace. 98 Though many of the considerations Armstrong cites in support of Coinbase’s policies apply to other organizations, and though he does not shy away from this, his post is not a manifesto for the corporate world in general or an argument that every organization should emulate Coinbase. It is instead a wise attempt to reach alignment with those who choose to deal with his company about the terms on which they will interact. Importantly, he acknowledges that other companies may have different cultures, and that employees who aren’t aligned with Coinbase’s approach may want to seek employment elsewhere.

Armstrong’s post epitomizes the mindset of a genuine culture of free speech. It is the opposite of the Millian demand that individuals and organizations sacrifice their convictions and values by adopting ideologically neutral policies of association that may be inconsistent with their values. Such demands are premised on the notion that universities, social media companies, employers, and other businesses (such as internet service providers, banks, etc.) are obligated to operate with the ideological neutrality that is required of governments. There is no reason why all or most organizations should commit to any such policies, and for many it would be self-defeating.

When free speech is lauded as a collective value, it is often because the exchange of ideas allows truth to be discovered and error abandoned. But it is the individualistic culture of free speech, rather than the Millian, collectivistic alternative, that in fact promotes the discovery of truth and the countering of error. Louis D. Brandeis famously wrote that the “remedy to be applied” for “falsehood and fallacies” is “more speech, not enforced silence.” 99 There is truth in this. When one thinks that there is a falsehood or fallacy that has gone unanswered, one does well to answer it. But often falsehoods and fallacies continue to be repeated and spread, in their original forms or with trivial modifications, despite having been soundly answered. The rational course here is to marginalize them, rather than to devote one’s days to Sisyphean refutations of the same fallacies. We have seen that marginalizing ideas by refusing to platform them (or even, in some cases, by refusing to associate with their proponents) is an exercise of free speech. Like other exercises of free speech, policies that promote or marginalize certain types of speech can be mistaken or unjust. The way to fight such wrongs is not to demand that the policies be replaced to serve a collective good. It is to practice better policies oneself, not as a duty to society but in furtherance of one’s own values and those of one’s associates. This can include a policy of disassociating oneself with those whose policies one regards as especially unjust.

As applied to the issue of association or disassociation, valuing free speech amounts to valuing the freedom to associate with or disassociate from others based on their opinions (and on their approach to disagreement). It is not to prefer content-neutral terms of association over ideologically robust ones.

In general, freedom includes the ability to disassociate from others , whether on the grounds of their ideas or for any other reason. To be free is to be free from others imposing themselves on one, so that all one’s associations are voluntary. Rights are the principles defining this freedom. They are recognitions of the conditions that human beings need in order to coexist within a society, and they are distinct from the terms of association defining more specific relationships or institutions within the society. Rights should structure society: they delineate the spheres in which each person’s reason reigns and define what is up to whom in cases of disagreement. Our rights set the background context in which we can choose whom to deal with and on what terms.

All the values we can gain from our associations with others are products of their thinking. One is only thinking insofar as one is thinking freely – allowing one’s thoughts to go wherever the evidence leads – and this will lead to disagreement sometimes. Therefore, we need to value disagreement as well as agreement, and make sure not to create a censorious environment in which a particular party line has to be toed. Rather, we need to value the expression of differences insofar as this is consistent with the kinds of agreements that are presupposed by the kinds of relationships we have.

The right to free speech (and the broader liberty from which it is inseparable) is necessary not merely to create wide-open forums where all ideas are welcome, but also to create narrow alliances based on robust shared convictions. It is needed also to enable every sort of association between these extremes. It is through relationships of all these sorts that liberty enriches our lives, and a true culture of free speech is one that recognizes and celebrates this, not one that parochially values ideological neutrality. Moreover, it is a culture that recognizes that the institutions within our society – the universities, the corner shops, the social media platforms, and the technological and financial infrastructure that underlies them – do not belong to us as a collective and do not exist for the sake of promoting some “public good.” Rather, these institutions belong to the specific individuals who create and sustain them (in myriad ways), and they exist for the sake of these individuals’ values.

There is such a thing as a culture of free speech, but it does not consist in any specific set of policies that a university, a publisher, a social media platform, a library, or a bookstore might adopt. Nor does it consist in ideological neutrality or welcoming of heterodoxy, for it can be embodied at least as fully by associations predicated on robust ideological agreements as by associations that are more welcoming of dissent. Wells and Fleming’s newspaper, the Free Speech , would not have been more aptly named if it had opened its editorial pages to those who condoned lynchings as well as those who opposed them. The paper was well named not because it was neutral, but because its editors were asserting their right to express their ideas (using their own resources), even in a context where they knew they might be met not only with disapproval, but with force .

In a true culture of free speech, even people who detest a speaker will rally in the face of such forcible attempts to silence him. Volunteers will step forward to provide any needed security, because it will be generally understood that everyone is violated when anyone is forcibly silenced. Attempted silencing will fail, because people will amplify the threatened speech, in the understanding that intimidation cannot succeed when people stand united against it.

Such a culture is not possible among people who imagine that freedom of speech requires – or even gently suggests – that we give a hearing or a platform to all speakers, regardless of the content of their convictions or of our own. To embrace free speech as a cultural value, we must understand that the right that is violated by the forcible suppression of speech is exercised when someone peacefully chooses to deny a speaker her support. We must grasp that freedom of speech is, like all freedom, an instance of the principle that human beings must deal with one another by reason and persuasion, rather than force. In order to live by this principle, we must be keenly aware of the difference between expressing one’s opinion and forcing oneself on others. It is this domain of peaceable expression that the right to free speech defines and sanctions. A culture of free speech is one in which individuals appreciate, utilize, and guard the full extent of this freedom.

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• Writers advocating a “free speech culture” in addition to the protections for free speech under the law include: Jacob Mchangama, Free Speech: A History from Socrates to Social Media (New York: Basic Books: 2022); David French, “Campus Free Speech Can’t Survive Cultural Change,” The Atlantic , March 2022, https://www.theatlantic.com/newsletters/archive/2022/03/campus-free-speech-cant-survive-cultural-change-emma-camp-self-censorship/676573/ ; David French, “You Can Say That: Preserving Free Speech from Political Correctness,” John Locke Foundation (YouTube channel), posted December 11, 2018, https://www.youtube.com/watch?v=RQF3HKcx52k&t=3065s ; Greg Lukianoff and Rikki Schlott, The Canceling of the American Mind (New York: Simon & Schuster: 2023), especially 293–313; Nico Perrino, “Free Speech Culture, Elon Musk, and Twitter,” FIRE blog, December 1, 2022,  https://www.thefire.org/news/free-speech-culture-elon-musk-and-twitter#:~:text=We%20need%20a%20free%20speech,ability%20to%20share%20our%20opinions ; Robert Tracinski, “We Need More Than the First Amendment, We Need a ‘Culture of Free Speech,’” Discourse , June 14, 2021, https://www.discoursemagazine.com/p/we-need-more-than-the-first-amendment-we-need-a-culture-of-free-speech ; Eugene Volokh, “Free Speech Rules, Free Speech Culture, and Legal Education,” Hofstra Law Review 51, no. 3 (June 2023); Nadine Strossen, Free Speech: What Everyone Needs to Know (New York: Oxford University Press, 2024) 9.
• On this aspect of the virtue of independence, see especially Leonard Peikoff, Objectivism: The Philosophy of Ayn Rand (Meridian, 1991), 251–59 and Tara Smith, Ayn Rand’s Normative Ethics (Cambridge University Press, 2006), 126–28).
• Ayn Rand, “Man’s Rights.” in The Virtue of Selfishness: A New Concept of Egoism (New York: Signet, 1964 Centennial edition), 110.
• Ida B. Wells, Crusade for Justice: The Autobiography of Ida B. Wells , 2d ed. (Negro American Biographies and Autobiographies) (Chicago: University of Chicago Press, 2020), 53.
• Wells, Crusade , 54.
• Ida B. Wells-Barnett, Southern Horrors: Lynch Law in All Its Phases , available online at https://www.gutenberg.org/files/14975/14975-h/14975-h.htm .
• Wells-Barnett, Southern Horrors ,5–6.
• Regarding the attacks on free speech by Islamists, see especially Steve Simpson, ed., Defending Free Speech (Irvine, CA: Ayn Rand Institute Press, 2016), and Flemming Rose, The Tyranny of Silence (Washington, DC: Cato Institute, 2014).
• “Rev. Nightingale had, in the meantime, withdrawn from the paper. He had trouble with his congregation and he wanted to use the Free Speech to flay those who had opposed him and wanted to get rid of him. When we objected to the articles he wrote abusing his enemies, who were our supporters, he withdrew and we bought out his interest.” Wells, Crusade , 36.
• “Six weeks after the lynching the superintendent and treasurer of the City Railway Company came into the office of the Free Speech and asked us to use our influence with the colored people to get them to ride on the streetcars again.” Wells, Crusade , 47. “‘You see it’s a matter of dollars and cents with us. If we don’t look after the loss and remedy the cause the company will get somebody else who will.’ ‘So your own job then depends on Negro patronage?’ I asked.” Wells, Crusade , 48.
• “Of course the Free Speech had a very caustic comment on this particular incident and that type of minister. The preachers’ alliance at its meeting the following Monday morning voted to boycott the Free Speech because of that comment and the exposure of that incident. They sent the presiding elder of the district to the office to threaten us with the loss of their patronage and the fight they were going to make against us in their congregations. We answered this threat by publishing the names of every minister who belonged to the alliance in the next issue of the Free Speech , and told the community that these men upheld the immoral conduct of one of their number and asked if they were willing to support preachers who would sneak into their homes when their backs were turned and debauch their wives. Needless to say we never heard any more about the boycott, and the Free Speech flourished like a green bay tree.” Wells, Crusade , 36–37.
• Consider a situation in which one party might be described as “threatening” to disassociate from a second unless the second agrees to his terms. If we regard this literally as a threat that would make second party’s acceptance of the terms involuntary, then, in order to avoid threatening the second party, the first would have to continue associating with the second even on terms that the first finds unacceptable, and so the relationship would not be voluntary for the first party.
• The italicized formulation is a paraphrase of Rand, “Man’s Rights,” 110. For elaboration, see Leonard Peikoff, Objectivism: The Philosophy of Ayn Rand (New York: Dutton, 1991), 351–63; DarrylWright “‘A Human Society’: Rand’s Social Philosophy” in Allan Gotthelf and Gregory Salmieri, eds., A Companion to Ayn Rand (Malden, MA: Wiley Blackwell, 2016), 172–77; Gregory Salmieri, “Selfish Regard for the Rights of Others: Continuing a Discussion with Zwolinski, Miller, and Mossoff,” in Gregory Salmieri and Robert Mayhew, eds., Foundations of a Free Society: Reflections on Ayn Rand’s Political Philosophy (Pittsburgh, PA: University of Pittsburgh Press, 2019), 184–92; and Onkar Ghate “Rand (contra Nozick) on Individual Rights and the Emergence and Justification of Government,” in Salmieri and Mayhew, Foundations ,211–19.
• Rand, “Man’s Rights.”
• I exclude here cases of defamation, on which see below, note 11.
• Wells, Crusade ,54–55. The power of disassociation is a theme in Wells’s autobiography, which begins with the story of her father leaving the man who was his employer, landlord, and former owner, over the latter’s attempt to pressure him into voting Democratic.
• A notable case of this sort of disassociation over ideology in American history is the boycotting by some Hollywood studios of Communist writers (and the much less remarked-on boycotting by many sympathetic to these Communists of those who had testified about Communist activity in Hollywood before the House Un-American Activities Committee). This episode is often represented as a violation of the Communists’ freedom of speech. Rand argued compellingly it was not. See Michael S. Berliner, ed., Letters of Ayn Rand (New York: Dutton, 1995),433–34, 435–36; Robert Mayhew, ed., Ayn Rand Answers: The Best of Her Q&A (New York: New American Library, 2005 Centennial edition), 80–85; David Harriman, ed., Journals of Ayn Rand (New York: Plume, 1999),366; Robert Mayhew, Ayn Rand and Song of Russia: Communism and Anti-Communism in 1940s Hollywood (Lanham, MD: Scarecrow Press, 2005), 84–93; John David Lewis and Gregory Salmieri, “A Philosopher on Her Times: Ayn Rand’s Political and Cultural Commentary,” in Gotthelf and Salmieri, Companion , 354–55.
• See Robert Garmong’s “The Arc of Liberalism” in Salmieri and Mayhew (eds.), Foundations of a Free Society .
• John Stuart Mill, On Liberty, in Mary Warnock, ed., Utilitarianism, On Liberty, Essay on Bentham (New York: Meridian, 1974), 130, 159.
• For example, Mill speaks of the nascent labor movement’s employing “a moral police, which occasionally becomes a physical one” to impose its opinions on employers and workers (Mill, On Liberty , 219). The moral police is presumably the body of union members voicing their disapproval of or disassociating from those who voice (or act on) opinions contrary to their own; it becomes a physical police (I presume) when it resorts to violence. In fact, many of the tactics of the nineteenth- and twentieth-century labor movement violated rights. As Rand puts the point: “An individual has no right to do a ‘sit‐in’ in the home or office of a person he disagrees with – and he does not acquire such a right by joining a gang. Rights are not a matter of numbers – and there can be no such thing, in law or in morality, as actions forbidden to an individual, but permitted to a mob” (Ayn Rand, “The Cashing-In: The Student ‘Rebellion,’” in Capitalism: The Unknown Ideal (New York: Signet, 1967 Centennial edition), 291).
• On the fallacy of “package-dealing,” see Gregory Salmieri, “The Objectivist Epistemology,” in Gotthelf and Salmieri, Companion , 297–98, and the sources cited therein.
• Rand, “Man’s Rights,” 110.
• My point here is not about the specific charges (“conspiracy,” “murder,” “mayhem”) under which these actions are or ought to be prosecutable, as these may differ from one jurisdiction to the next. The point is that these actions are akin to the rights-violations cognized under such laws, and ought to be prosecutable for the same underlying reasons, whether under these laws or under separate laws prohibiting threats or incitement.
• Some of those behind the social media campaign that led to Paty’s death were (properly) prosecuted by the French authorities. Juliette Jabkhiro and Clotaire Achi, “Six French Teenagers Convicted in Connection with 2020 Beheading of Teacher Paty,” Reuters (website), December 28, 2023, https://www.reuters.com/world/europe/six-teenagers-convicted-connection-with-2020-beheading-teacher-paty-2023-12-08/.
• Elan Journo, ed., Winning the Unwinnable War (Lanham, MD: Lexington Books: 2009); Leonard Peikoff, “Religious Terrorism vs. Free Speech,” Ayn Rand Institute (website), 1989, https://ari.aynrand.org/issues/foreign-policy/foreign-policy-more/religious-terrorism-vs-free-speech/.
• Fraud is not free speech, because a fraudster’s lies are a means of forcing himself on his victim, so that the transaction that takes place is not the one the victim consented to. Defamation (as distinct from mere criticizing or badmouthing) is a violation of a sort of property a person (or institution) has in his reputation – the same (broad) sort of property that is secured by trademark. Harry Binswanger explains: “Someone who impersonates me in order to sell to customers impressed by my reputation is, in effect, stealing this property from me (as well as defrauding the customers). And someone who defames me is damaging this property. The idea that a person can have property in his reputation follows from Rand’s view that the basis for a property right is an individual’s creation of something that is of material value.” (Harry Binswanger, “Egoism, Force, and the Need for Government,” in Salmieri and Mayhew, Foundations , 274).
• It is worth mentioning in this connection the American Civil Liberties Union’s 1977 defense of the National Socialists’ right to stage a march in Skokie, Illinois, which is much celebrated by those who think of themselves as free-speech absolutists. The Nazis had no right to hold such an event, because no one has the right to stage events of this kind. However, in a context where other ideological groups were permitted to hold such events on public property, it was violation of free speech for the Nazis to be excluded on ideological grounds. Rand explains: “You do not have the right to parade through the public streets or to obstruct public thoroughfares. You have the right of assembly, yes, on your own property, and on the property of your adherents or your friends. But nobody has the ‘right’ to clog the streets. The streets are only for passage. The hippies, in the ’60s, should have been forbidden to lie down on city pavements. (They used to lie down across a street and cause dreadful traffic snarls, in order to display their views, to attract attention, to register a protest.) If they were permitted to do it, the Nazis should be permitted as well. Properly, both should have been forbidden. They may speak, yes. They may not take action at whim on public property” (Ayn Rand, “The First Amendment and ‘Symbolic Speech,’” in Peter Schwartz, ed., Ayn Rand Column , rev. ed. (Irvine, CA: Ayn Rand Institute, 2015),117).
• On the issue of rights-violating protests generally, see Onkar Ghate’s talk “Questioning the Sacrosanct: Is There a Right to Protest?,” Salem Center for Policy (YouTube channel), November 2, 2021, https://www.youtube.com/watch?v=cdpu2JzzhFs. On Occupy Wall Street, see James A. Anderson, “Some Say Occupy Wall Street Did Nothing. It Changed Us More than We Think,” Time ,November 15, 2021, https://time.com/6117696/occupy-wall-street-10-years-later/ . On pro-Palestinian protesters occupying thoroughfares, see “Pro-Palestinian Demonstrators Shut Down Airport Highways and Bridges in Major Cities,” NPR (website), April 16, 2024, https://www.npr.org/2024/04/16/1244990246/pro-palestinian-demonstrators-shut-down-airport-highways-and-bridges . On their occupying campuses, see John McWhorter, “I’m a Columbia Professor. The Protests on My Campus Are Not Justice,” New York Times , John McWhorter newsletter, April 23, 2024, https://www.nytimes.com/2024/04/23/opinion/columbia-protests-israel.html and Lily Kepner, Skye Seipp, Ella McCarthy and Serena Lin, “UT-Austin Students Hold Pro-Palestinian Protest; at least 50 arrested,” Austin American-Statesman , April 25, 2024, https://www.statesman.com/story/news/local/2024/04/24/ut-austin-campus-student-protest-arrest-pro-palestine-protests-walk-out/73425149007 . On their occupying someone’s home, see Vimal Patel, “At Berkeley, a Protest at a Dean’s Home Tests the Limits of Free Speech,” New York Times ,April 12, 2024, https://www.nytimes.com/2024/04/12/us/uc-berkeley-palestinian-protest-free-speech.html .
• For information on the events at Berkeley from authors largely sympathetic to the protesting students, see Robert Cohen and Reginald E. Zelnik, eds., The Free Speech Movement: Reflections on Berkeley in the 1960s (Berkeley, CA: University of California Press: 2002).
• Rand, “The Cashing-In,” 291.
• See Simpson, Defending Free Speech ,87–89.

For years, the collectivists have been propagating the notion that a private individual’s refusal to finance an opponent is a violation of the opponent’s right of free speech and an act of “censorship.”

• On restrictions of commercial speech, see: https://ij.org/issues/first-amendment/commercial-speech/ . On campaign finance laws as violations of free speech, see Simpson, Defending Free Speech , 93–108.
• On why the “separation of church and state” demanded by the First Amendment should be applied to ideas more generally, see Onkar Ghate, “A Wall of Separation between Church and State: Understanding This Principle’s Supporting Arguments and Far-Reaching Implications,” in Salmieri and Mayhew, Foundations , 283–303, reprinted as chapter 2 of this volume.
• On the evil of public education, see Nathaniel Branden, “Common Fallacies about Capitalism,” in Rand, Capitalism ,92–96. See also “Is Public Education Compatible with Free Speech?,” Salem Center for Policy (YouTube channel), November 2, 2021, https://www.youtube.com/watch?v=_7zMtX0W82s , and Matt Bateman, “Public Schools Exacerbate the Culture Wars,” Montessorium (blog), November 17, 2021, https://montessorium.com/blog/public-schools-exacerbate-the-culture-wars .
• For example, Jordan Peterson’s free speech was violated by the College of Psychologists of Ontario when it disciplined him (threatening to revoke his license to practice psychology) because of his controversial statements on a number of subjects. (Tyler Dawson, “Read Jordan Peterson’s Tweets That Prompted Complaints to Psychologists’ College,” National Post , January 6, 2023, https://nationalpost.com/news/canada/read-jordan-petersons-tweets-that-prompted-complaints-to-psychologists-college ). But the underlying violation of free speech is the existence of the College itself as a regulatory body . An organization of psychologists making joint determinations about who is a qualified practitioner in their field may need to take cognizance of the practitioners’ opinions on a range of subjects (and of how they chose to express these opinions). And their doing so would be no violation of the freedom of speech if the organization were voluntary. However, when the decisions of the organization determine whether someone is to be legally allowed to practice, any consideration of such opinions becomes fraught. To minimize the evil inherent in the existence of such an organization, it is obligated to adopt the most neutral stance possible toward practitioners’ opinions, even if that reduces its work to a sort of box-checking exercise that is insufficient to make meaningful determinations about who is and is not fit to practice.
• Florida’s statute 501.2041(2)(b) demands a consistent standard for shadow-banning and deplatforming users on social media platforms ( http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0500-0599/0501/Sections/0501.2041.html ). Texas’s H.B. 20 bars social media platforms with more than fifty million active users from blocking, removing, or demonetizing content of users based on their views ( https://capitol.texas.gov/tlodocs/872/billtext/html/HB00020F.HTM ). Both laws were enjoined by district courts as a result of facial First Amendment challenges. The Eleventh Circuit upheld the injunction against the Florida law, but the Fifth Circuit reversed the injunction of the Texas law, creating a circuit split. The Supreme Court vacated both circuit court holdings and remanded the cases “because neither the Eleventh Circuit nor the Fifth Circuit conducted a proper analysis of the facial First Amendment challenges to Florida and Texas laws regulating large internet platforms” ( Moody v. NetChoice , https://www.supremecourt.gov/opinions/23pdf/22-277_d18f.pdf ). At present the district courts’ injunctions are in effect. The Supreme Court’s ruling makes clear that the specific provisions of the laws that were focused on by the circuit courts are unconstitutional and that the Fifth Circuit’s “decision rested on a serious misunderstanding of First Amendment precedent and principle,” so there is little doubt that the relevant previsions of the laws will ultimately be struck down (whether or not this facial challenge against the laws as wholes ultimately succeeds).
• For example, there are contexts in which burning a cross, drawing a swastika, or invoking the mottos or symbols of a violent group (such as ISIS, the Ku Klux Klan, or a street gang) could be reasonably understood as putting people on notice that they are subject to violence from these groups or as calling potential victims to the group’s attention. In such cases, the invocations could be tantamount to intimidation or coordination of criminal activity.
• Thus Wells’s right of free speech was violated when her contract as a public school teacher was not renewed because she had protested “conditions in the colored schools.” As she recounts the event: “No fault was found with my ability as a teacher or with my character, but the board had a copy of the Free Speech on file in the office showing criticism of them. They didn’t care to employ a teacher who had done this, and for that reason I had been left out.” (Wells, Crusade ,32–34) However, it would not have been a violation of Wells’s free speech rights if she had been fired by a private school for having published a similar criticism of it.
• Wells, Crusade , 48–49. For additional background on these events, see Damon Mitchell, “The People’s Grocery Lynching, Memphis, Tennessee,” JSTOR Daily (blog), January 24, 2018, https://daily.jstor.org/peoples-grocery-lynching/ .

Katie Shepherd and Mark Guarino, “Liberal Prosecutors Face Backlash over Lenient Charges Following Civil Unrest and Looting,” Washington Post , August 12, 2020, https://www.washingtonpost.com/nation/2020/08/12/chicago-portland-protester-charges/ . Mariana Alfaro, “Trump Vows Pardons, Government Apology to Capitol Rioters if Elected,” Washington Post , September 1, 2022, https://www.washingtonpost.com/national-security/2022/09/01/trump-jan-6-rioters-pardon/ .

• Surely racism (and cowardice concerning it) does not exist in America today at the scale and in the form that it did in Wells’s time, but it persists in various forms, and questions about the extent, nature, causes, and effects of racism in present-day America continue to be controversial. I will not go further into this question here, except to say that whatever is the case with racism in particular, we must be ever vigilant about the possibility of widespread cultural prejudices within our society (and in ourselves) that can pervert the course of justice in some of the ways described.
• See George H.W. Bush’s remarks in the wake of the Ayatollah’s call for Salman Rushdie’s murder, remarks which the New York Times characterized as “intended to express condemnation in a low-key manner” (Thomas L. Friedman, “Bush Finds Threat to Murder Author ‘Deeply Offensive,’” New York Times , February 22, 1989, https://archive.nytimes.com/www.nytimes.com/books/99/04/18/specials/rushdie-bush.html ); George W. Bush’s official statement that “Islam Is Peace” in the wake of the September 11, 2001, attacks (“‘Islam Is Peace,’ Says President,” White House press release, September 17, 2001, https://georgewbush-whitehouse.archives.gov/news/releases/2001/09/20010917-11.html ); Barack Obama, “Remarks by the President to the UN General Assembly,” White House press release, September 25, 2012, https://obamawhitehouse.archives.gov/the-press-office/2012/09/25/remarks-president-un-general-assembly (“The future must not belong to those who slander the prophet of Islam”); Donald Trump’s tweet that it was “dumb” for the Charlie Hebdo magazine to criticize Mohammed in a cartoon that thereby “provoked” a violent response by terrorists ( https://tinyurl.com/m8pr8yr2 ); David Frum, “Why Obama Won’t Talk about Islamic Terrorism,” Atlantic , February 16, 2015, https://www.theatlantic.com/politics/archive/2015/02/why-obama-wont-talk-about-islamic-terrorism/385539/ (Obama describing terrorist attacks as “random” in order to avoid describing the perpetrators’ religious motives); Elan Journo, “After Orlando: Why Trump and Clinton Both Get the Jihadists Wrong,” in Onkar Ghate and Elan Journo, eds., Failing to Confront Islamic Totalitarianism: What Went Wrong After 9/11 , 2d expanded ed. (Santa Ana, CA: Ayn Rand Institute Press, 2021), 166–68 (leading presidential candidates, Hillary Clinton and Donald Trump, “have put forward views that negate the ideological character of the enemy”).
• See Journo, Winning the Unwinnable War ; Ghate and Journo, Failing to Confront ; and Leonard Peikoff’s article following the 9/11 attacks, “End States Who Sponsor Terrorism,” in Ghate and Journo, Failing to Confront , xvii–xxii, https://ari.aynrand.org/issues/foreign-policy/foreign-policy-more/end-states-who-sponsor-terrorism/ .
• For example, many of the organizations mentioned were subjects of the COINTELPRO, a counterintelligence program run by the FBI between 1956 and 1971. On this program, see the Church Committee’s report, https://www.senate.gov/about/powers-procedures/investigations/church-committee.htm NS, and David Cunningham, There’s Something Happening Here: The New Left, the Klan, and FBI Counterintelligence (Berkeley, CA: University of California Press, 2004).
• On the problems created by misconceptualizing in this field, see Tara Smith, “The Free Speech Vernacular: Conceptual Confusions in the Way We Speak about Speech,” chapter 4 in her The First Amendment: Essays on the Imperative of Intellectual Freedom (Santa Ana, CA: Ayn Rand Institute Press: 2024).
• See Ghate, “A Wall of Separation,” and Onkar Ghate, “Church-State Separation: A Principle, Not a ‘Wall,’” New Ideal , March 27, 2019,https://newideal.aynrand.org/church-state-separation-a-principle-not-a-wall-part-1/.
• In situations where there is no government (or the government is irredeemably unjust), the principle of rights demands that a just government be formed, and it obligates those living in the society either to work toward forming one (where there is any possibility of doing so) or else attempt to escape to a more moral society.
• Mill, On Liberty , 163–64.
• Mill, On Liberty , 164.
• The law firm Davis Polk has rescinded offers to law students from Columbia and Harvard on these grounds: Adam Gabbatt, “Leading US Law Firm Says It Rescinded Job Offers to Students Who Backed Israel-Hamas Letters,” The Guardian , October 18, 2023, https://www.theguardian.com/us-news/2023/oct/18/student-palestine-letter-harvard-columbia-us-law-firm-jobs-revoked.
• https://journalofcontroversialideas.org/ .
• Elon Musk (@elonmusk), “Given that Twitter serves as the de facto town square,” Twitter, March 26, 2022, 1:51 p.m., https://twitter.com/elonmusk/status/1507777261654605828 .
• Elon Musk (@elonmusk), “Dear Twitter Advertisers,” Twitter, October 27, 2022, 9:08 a.m., https://twitter.com/elonmusk/status/1585619322239561728/photo/2 .
• Elon Musk (@elonmusk), “By ‘free speech,’ I simply mean that which matches the law,” Twitter, April 26, 2022, 3:33 p.m., https://twitter.com/elonmusk/status/1519036983137509376 .
• “Censorship” as used to include refusals-to-platform is an “anti-concept” – “an unnecessary and rationally unusable term designed to replace and obliterate some legitimate concept” (Ayn Rand, “Credibility and Polarization,” Ayn Rand Letter 1, no. 1 (October 11, 1971), 1. In particular, the term “censorship” was used by socialists in the mid-twentieth century to obliterate the legitimate concepts of “censorship” and “free speech.” Rand forcefully differentiates such refusals-to-platform from censorship: “‘Censorship’ is a term pertaining only to governmental action. No private action is censorship. No private individual or agency can silence a man or suppress a publication; only the government can do so. The freedom of speech of private individuals includes the right not to agree, not to listen and not to finance one’s own antagonists” (Rand, “Man’s Rights,” 116). The point is not merely semantic. If one accepts that there is a right to freedom of speech (as elaborated in the first section of this paper), then there can be no grounds for any concept that includes only some acts of content moderation (which are exercises of this right) and all acts of genuine censorship (which are violations of this same right).
• Of course the First Amendment, like all law (even fundamental law), is ultimately passed by the people’s representatives and can be changed by them in the future. Its status as a law reflects the will of the people whose duly elected representatives ratified it. But, what they were doing in ratifying it was recognizing and protecting a right that is inherent in human nature, and this is what makes it a just law. This relation between laws and rights is well reflected in the concluding text of the Virginia Statute for Religious Liberty (which was drafted by Thomas Jefferson, shepherded through the Virginia legislature by James Madison, and then served as a model for the First Amendment): “And though we well know that this Assembly, elected by the people for the ordinary purposes of legislation only, have no power to restrain the acts of succeeding assemblies constituted with powers equal to our own, and that, therefore, to declare this act to be irrevocable would be of no effect in law; yet we are free to declare, and do declare, that the rights hereby asserted are of the natural rights of mankind; and that if any act shall be hereafter passed to repeal the present, or to narrow its operation, such act will be an infringement of natural right” (Va. Code Ann. § 57-1, https://law.lis.virginia.gov/vacodefull/title57/chapter1/).
• American Association of University Professors, “1940 Statement of Principles on Academic Freedom and Tenure,” 14, https://www.aaup.org/file/1940%20Statement.pdf .
• American Association of University Professors, “1915 Declaration of Principles on Academic Freedom and Academic Tenure,” 293, 296–97, https://www.aaup.org/NR/rdonlyres/A6520A9D-0A9A-47B3-B550-C006B5B224E7/0/1915Declaration.pdf.
• AAUP, “1915 Declaration,” 297.
• AAUP, “1915 Declaration,” 300.
• Tiffany Hsu, “Twitter’s Advertisers Pull Back as Layoffs Sweep Through Company,” New York Times , November 4, 2022, https://www.nytimes.com/2022/11/04/technology/twitter-advertisers.html ; Nicholas Reimann, “Musk Says Apple Cutting Twitter Ads – Here Are Other Companies Rethinking Their Ties,” Forbes.com (website), November 28, 022, https://www.forbes.com/sites/nicholasreimann/2022/11/28/musk-says-apple-cutting-twitter-ads-here-are-the-other-companies-rethinking-their-ties/ ; Kari Paul, “General Mills Latest to Halt Twitter Ads as Musk Takeover Sparks Brand Exodus,” The Guardian , November 3, 2022,  https://www.theguardian.com/technology/2022/nov/03/general-mills-twitter-ads-halt-musk-takeover ; Kate Congers and Tiffany Hsu, “More Advertisers Halt Spending on X in Growing Backlash Against Musk,” New York Times ,November 18, 2023, https://www.nytimes.com/2023/11/18/technology/elon-musk-twitter-x-advertisers.html .
• Elon Musk, “Dear Twitter Advertisers.”
• Elon Musk (@elonmusk), “Premium+ also has no ads on your timeline,” X, November 17, 2023, 9:48 p.m., https://twitter.com/elonmusk/status/1725707584555143602 .
• “Elon Musk’s X sues advertisers over alleged ‘massive advertiser boycott’ after Twitter takeover,” Associated Press , August 6, 2024, https://apnews.com/article/x-sues-advertisers-unilever-cvs-mars-orsted-673d1ae88e9fb0ca5b170d238739453e . Relevant Tweets: https://x.com/lindayaX/status/1820838134470328676 , https://x.com/elonmusk/status/1820849880283107725?lang=en , https://x.com/elonmusk/status/1820849358402670800?lang=en , https://x.com/elonmusk/status/1820852107932545242 , https://x.com/elonmusk/status/1820851090138505570.
• Josh Halliday, “Twitter’s Tony Wang: ‘We Are the Free Speech Wing of the Free Speech Party,’” The Guardian ,March 22, 2012, https://www.theguardian.com/media/2012/mar/22/twitter-tony-wang-free-speech.
• Sinead McSweeney (Twitter’s vice president for public policy and communications in Europe, the Middle East, and Africa) in 2017 testimony before British parliament (Shona Ghosh, “Twitter Was Once a Bastion of Free Speech but Now Says It’s ‘No Longer Possible to Stand Up for All Speech,’” Business Insider , December 19, 2017,  https://www.businessinsider.com/twitter-no-longer-possible-to-stand-up-for-all-speech-2017-12?r=nordic).
• Ashe Schow, “Twitter CEO: ‘I Don’t Believe That We Can Afford to Take a Neutral Stance Anymore,’” Daily Wire , February 11, 2019, https://www.dailywire.com/news/twitter-ceo-i-dont-believe-we-can-afford-take-ashe-schow ; “Jack Dorsey,” SamHarris.org (website), interview, February 5, 2019, https://samharris.org/podcasts/148-jack-dorsey/.
• The terms “left” and “right” as they are used in contemporary political discourse name rival tribes, each of which is united by its fear and hatred of the other, rather than by a shared ideology. On the constitution and history of these tribes (and the various ideas current in each of them), see Nikos Sotirakopoulos, Identity Politics and Tribalism: The New Culture Wars (Exeter, UK: Imprint Academic, 2021).
• Elizabeth Dwoskin and Tony Romm, “Facebook Purged over 800 U.S. Accounts and Pages for Pushing Political Spam,” Washington Post ,October 11, 2018, https://www.washingtonpost.com/technology/2018/10/11/facebook-purged-over-accounts-pages-pushing-political-messages-profit/ ; “Removing Additional Inauthentic Activity from Facebook,” Meta (website), October 11, 2018, https://about.fb.com/news/2018/10/removing-inauthentic-activity/ ; Helen Lewis, “What You Can’t Say on YouTube,” The Atlantic , March 10, 2023, https://www.theatlantic.com/ideas/archive/2023/03/youtube-content-moderation-rules/673322/ ; Sam Levin, “YouTube’s Small Creators Pay Price of Policy Changes after Logan Paul Scandal,” The Guardian ,January 18, 2018, https://www.theguardian.com/technology/2018/jan/18/youtube-creators-vloggers-ads-logan-paul ; Jack Nicas, “Google’s YouTube Has Continued Showing Brands’ Ads With Racist and Other Objectionable Videos,” Wall Street Journal ,March 24, 2017, https://www.wsj.com/articles/googles-youtube-has-continued-showing-brands-ads-with-racist-and-other-objectionable-videos-1490380551 ; Alexi Mostrous, “Big Brands Fund Terror Through Online Adverts,” Sunday Times , February 9, 2017, https://www.thetimes.co.uk/article/big-brands-fund-terror-knnxfgb98 ;  Avi Selk, “Facebook Told Two Women Their Pro-Trump Videos Were ‘Unsafe,’” Washington Post , April 10, 2018,  https://www.washingtonpost.com/news/the-intersect/wp/2018/04/10/facebook-accused-of-deeming-black-pro-trump-sisters-unsafe/ ; Ashley Gold, “‘We’ve Been Censored,’ Diamond and Silk Tell Congress,” Politico , April 26, 2018, https://www.politico.com/story/2018/04/26/diamond-and-silk-congress-hearing-1116887 .
• On the lawsuit, see Prager University v. Google LLC, No. 18-15712, slip op. (9th Cir. Feb. 26, 2020), https://cdn.ca9.uscourts.gov/datastore/opinions/2020/02/26/18-15712.pdf ; Nancy Scola, “Federal Court Tosses Conservatives’ First Amendment Suit against YouTube,” Politico ,February 26, 2020, https://www.politico.com/news/2020/02/26/youtube-court-first-amendment-117769 ; NetChoice, Letter to Sen. Ted Cruz, Chairman, Subcommittee on the Constitution, Committee on the Judiciary, re: Hearing to Examine Google on Censorship Through Search Engines, July 15, 2019, https://netchoice.org/wp-content/uploads/2020/04/NetChoice-comment-for-Sen-Judiciary-hearing-16-Jul-2019-1.pdf .
• On the shooting, see Nellie Bowles and Jack Nicas, “YouTube Attacker’s Complaints Echoed Fight over Ad Dollars,” New York Times ,April 4, 2018, https://www.nytimes.com/2018/04/04/technology/youtube-attacker-demonetization.html .
• Kate Conger and Mike Isaac, “In Reversal, Twitter Is No Longer Blocking New York Post Article,” New York Times ,October 16, 2020, https://www.nytimes.com/2020/10/16/technology/twitter-new-york-post.html ; Noah Manskar, “Jack Dorsey Says Blocking Post ’s Hunter Biden Story Was ‘Total Mistake’ – But Won’t Say Who Made It,” New York Post ,March 25, 2021, https://nypost.com/2021/03/25/dorsey-says-blocking-posts-hunter-biden-story-was-total-mistake/ .
• Kate Conger, Mike Isaac and Sheera Frenkel, “Twitter and Facebook Lock Trump’s Accounts after Violence on Capitol Hill,” New York Times , January 6, 2021, https://www.nytimes.com/2021/01/06/technology/capitol-twitter-facebook-trump.html ; Will Oremus, “Tech Giants Banned Trump. But Did They Censor Him?,” Washington Post , January 7, 2022, https://www.washingtonpost.com/technology/2022/01/07/trump-facebook-ban-censorship/ .
• Harris is especially good in his opening remarks on free speech in episode 344 of his podcast, https://www.samharris.org/podcasts/making-sense-episodes/344-the-war-in-gaza , and the two discuss their approaches to being a public intellectual (and engaging with social media) in the first thirty-three minutes of Harris’s appearance on Peterson’s podcast, https://www.youtube.com/watch?v=2d3sk9gPfOA&t=207s .
• Sam Harris, “Closing My Patreon Account,” Patreon email, https://mailchi.mp/samharris/closing-my-patreon-account .
• Jordan Peterson, “Patreon Account Deletion,” video, Jordan B. Peterson (YouTube channel), posted January 15, 2019, https://www.youtube.com/watch?v=WrZDcEix7uk .
• CEO’s position statement, December 21, 2023, https://substack.com/@hamish/note/c-45811343 .
• Jonathan M. Katz, “Substack Has a Nazi Problem,” The Atlantic , November 28, 2023, https://www.theatlantic.com/ideas/archive/2023/11/substack-extremism-nazi-white-supremacy-newsletters/676156/ .
• CEO’s position statement, https://substack.com/@hamish/note/c-45811343 . Bryan Caplan, “Substack versus the Slippery Slope,” January 28, 2024, https://betonit.substack.com/p/substack-versus-the-slippery-slope .
• https://web.archive.org/web/20220501001906/https://parler.com/ .
• Jack Nicas and Davey Alba, “Amazon, Apple and Google Cut Off Parler, an App That Drew Trump Supporters,” New York Times , Jan. 9, 2021, https://www.nytimes.com/2021/01/09/technology/apple-google-parler.html ; Karen Weise and Nicole Perlroth, “Parler Accuses Amazon of Breaking Antitrust Law in Suspending Hosting Services,” New York Times, Jan. 11, 2021, https://www.nytimes.com/2021/01/11/business/parler-amazon.html .
• Aatif Sulleyman, “Parler’s Amy Peikoff Says Tech Giants Use ‘1984’ Like ‘An Instruction Manual,’” Newsweek , Jan 12, 2021, https://www.newsweek.com/parler-amy-peikoff-says-tech-giants-use-1984-like-instruction-manual-1560730 .
• Vimal Patel, “UPenn Accuses a Law Professor of Racist Statements. Should She Be Fired?,” New York Times ,March 13, 2023, https://www.nytimes.com/2023/03/13/us/upenn-law-professor-racism-freedom-speech.html . Ethan Young, “Leaked documents shed new light on recommended Amy Wax sanctions, her appeal to Penn,” Daily Pennsylvanian ,2/09/2024, https://www.thedp.com/article/2024/02/amy-wax-hearing-leaked-documents-penn .
• Jodi Dean, “Palestine Speaks for Everyone,” Verso (blog), April 9, 2024, https://www.versobooks.com/blogs/news/palestine-speaks-for-everyone .
• Mark D. Gearan, “A Message from President Mark D. Gearan,” Hobart and William Smith Colleges (website), April 13, 2024, https://www.hws.edu/offices/president/statements/a-message-from-president-mark-d-gearan.aspx.
• W.E.B. du Bois Movement School (@AbolitionSchool), “Jodi Dean has been banned from the classroom for speaking the truth,” X, April 14, 2024, 7:58 p.m., https://twitter.com/AbolitionSchool/status/1779660609367281920; Brian Leiter, “Brazen Violation of Contractual Rights of a Faculty Member at Hobart & William Smith Colleges,” Leiter Reports: A Philosophy Blog ,April 14, 2024, https://leiterreports.typepad.com/blog/2024/04/brazen-violation-of-contractual-rights-of-a-faculty-member-at-hobart-william-smith-colleges.html ; Sohrab Ahmari (@SohrabAmari), “I fiercely, thoroughly disagreed with Jodi’s piece,” X, April 13, 2024, 4:17 p.m., https://twitter.com/SohrabAhmari/status/1779242644658393340.
• Edward Alsworth Ross, Social Control: A Survey of the Foundations of Order (New Brunswick, NJ: Transaction Publishers, 2009), 52.
• “Warning Against Coolie ‘Natives’ and Japanese,” San Francisco Call and Post , May 8, 1900, 12, https://www.newspapers.com/image/78268425/?match=1&terms=%22vessel%20bringing%20Japanese%22.
• Jane Stanford, Letter of May 17, 1900, quoted in Warren J. Samuels, “The Firing of E. A. Ross from Stanford University: Injustice Compounded by Deception?,” Journal of Economic Education , Vol. 22, No. 2 (Spring, 1991), pp. 183–90 ( https://www.jstor.org/stable/1182424 ).
• On the Ross affair, see (in addition to the sources cited in the previous notes): Orrin Leslie Elliott, Stanford University: The First Twenty-Five Years (Stanford University Press, 1937), 326–78; Richard White, The Republic for Which It Stands: The United States during Reconstruction and the Gilded Age, 1865–1896 (Oxford History of the United States) (New York: Oxford University Press, 2017), 704–706; Brian Eule, “Watch Your Words, Professor,” Stanford Magazine , January/February2015, https://stanfordmag.org/contents/watch-your-words-professor .
• “Stanford History,” Stanford University (website), https://facts.stanford.edu/about/.
• Compare their mission statements: “Mission Statement,” Princeton University (website), https://www.princeton.edu/meet-princeton/mission-statement , and “What We Value,” University of Chicago (website), https://www.uchicago.edu/who-we-are/what-we-value .
• Kalven Committee, “Report on the University’s Role in Political and Social Action,” University of Chicago (website), November 11, 1967, https://provost.uchicago.edu/sites/default/files/documents/reports/KalvenRprt_0.pdf.
• Christopher L. Eisgruber, “Princeton’s Tradition of Institutional Restraint,” Princeton Alumni Weekly , November 7, 2022, https://paw.princeton.edu/article/princeton-president-christopher-eisgruber-tradition-institutional-restraint.
• Jacob Howland, “College of the Future,” City Journal ,Winter 2023, https://www.city-journal.org/article/college-of-the-future#:~:text=We%20care%20about%20academic%20freedom,and%20has%20encouraged%20political%20conformity .
• Howland, “College of the Future.”
• Brian Armstrong, “Coinbase Is a Mission Focused Company,” Coinbase(website), September 27, 2020, https://www.coinbase.com/blog/coinbase-is-a-mission-focused-company .
• Whitney v. California, 274 U.S. 357, 377 (1927) (Brandeis, J., concurring).
• On this story, see Mateo Gutierrez, Lyla Bhalla-Ladd and Mohammed Zain Shafi Khan, “Provost Announces Valedictorian Won’t Speak at Graduation in May,” USCAnnenbergMedia.com (website), April 15, 2024, https://www.uscannenbergmedia.com/2024/04/15/provost-announces-valedictorian-wont-speak-at-graduation-in-may/ ; Stephanie Saul, “U.S.C. Cancels Valedictorian’s Speech After Pro-Israel Groups Object,” New York Times , April 16, 2024, https://www.nytimes.com/2024/04/16/us/usc-valedictorian-speech-gaza-war.html ; Jaweed Kaleem, “USC Valedictorian’s Grad Speech Is Canceled: ‘The University Has Betrayed Me,’” Los Angeles Times , April 16, 2024, https://www.latimes.com/california/story/2024-04-16/usc-valedictorian-banned-graduation-speech .
• Regarding Milo Yiannopoulos, see Susan Svrluga, “Milo Speech at U-Md. Canceled Because Security Fee Was Too High; Supporters Call It Censorship,” Washington Post , October 25, 2016, https://www.washingtonpost.com/news/grade-point/wp/2016/10/25/milo-speech-at-u-md-canceled-because-security-fee-was-too-high-supporters-call-it-censorship/ . Regarding Ben Shapiro, see Eugene Volokh, “Cal State L.A. Cancels Speech by Conservative Writer Ben Shapiro [UPDATE: Cal. State L.A. Is Allowing Shapiro to Speak After All],” Washington Post ,February 25, 2016, https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/02/25/cal-state-l-a-cancels-speech-by-conservative-writer-ben-shapiro/ . I know about the canceled Brook events from personal communication with Brook.

Gregory Salmieri

Gregory Salmieri , PhD in philosophy, is a senior scholar of philosophy in the Salem Center for Policy at The University of Texas at Austin’s McCombs School of Business. He holds the Brigham Fellowship for the Study of Objectivism and is the director of the center’s Program for Objectivity in Thought, Action, and Enterprise. He is co-editor of A Companion to Ayn Rand and Foundations of a Free Society and has published and lectured on epistemology, ethics, political philosophy, and the philosophies of Aristotle and Ayn Rand.

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• Freedom of speech

Freedom of speech is the concept of being able to speak freely without censorship . It is often regarded as an integral concept in modern democracies.

• 1.2.1 Cato's Letters, John Trenchard and Thomas Gordon (Letter Number 15, Of Freedom of Speech, That the Same is inseparable from Publick Liberty , February 4, 1720)
• 3 External links

• John Milton , Areopagitica: A Speech for the Liberty of Unlicens'd Printing, to the Parliament of England (published November 23, 1644).
• Benjamin Franklin , "On Freedom of Speech and the Press", Pennsylvania Gazette , 17 November 1737 .
• Samuel Adams , ( Boston Gazette , 1768) — cited in: Emord, Jonathan W. (1991). Freedom, Technology, and the First Amendment . Pacific Research Institute for Public Policy. p. 61.  
• George Washington , address to the officers of the army, Newburgh, New York (March 15, 1783); reported in John C. Fitzpatrick, ed, The Writings of George Washington (1938), vol. 26, p. 225.
• Thomas Jefferson to Edward Carrington, January 16, 1787, The Thomas Jefferson Papers Series 1, General Correspondence, 1651-1827 ( Library of Congress ).
• Declaration of the Rights of Man and of the Citizen (1789), Article XI
• First Amendment to the United States Constitution . December 15, 1791.

• Thomas Jefferson to Archibald Stuart, Philadelphia, December 23, 1791.
• Cited in Thomas Jefferson (2002). "1791" . in Jerry Holmes. Thomas Jefferson: A Chronology of His Thoughts . Rowman & Littlefield. pp. p. 128. ISBN 0742521168 .  
• Samuel Johnson , as quoted in James Boswell's The Life of Samuel Johnson , Vol. 1 (1791), p. 335.
• Eyre, L.C.J., Hardy's Case (1794), 24 How. St. Tr. 206; reported in James William Norton-Kyshe, The Dictionary of Legal Quotations (1904), p. 99.
• Thomas Jefferson , Letter to William Green Mumford (18 June 1799) .

Cato's Letters , John Trenchard and Thomas Gordon (Letter Number 15, Of Freedom of Speech, That the Same is inseparable from Publick Liberty , February 4, 1720)

• Without Freedom of Thought, there can be no such Thing as Wisdom; and no such Thing as public Liberty, without Freedom of Speech; which is the Right of every Man, as far as by it, he does not hurt or control the Right of another. And this is the only Check it ought to suffer, and the only bounds it ought to know. This sacred Privilege is to essential to free Governments, that the Security of Property , and the Freedom of Speech always go together; and in those wretched Countries where a Man cannot call his Tongue his own, he can scarce call any Thing else his own. Whoever would overthrow the Liberty of a Nation, must begin by subduing the Freedom of Speech; a Thing terrible to Publick Traytors .
• That Men ought to speak well of their Governours is true, while their Governours , deserve to be well spoken of, but to do publick Mischief , without hearing of it, is only the Prerogative and Felicity of Tyranny : A free People will be shewing that they are so, by their Freedom of Speech.
• The Administration of Government, is nothing else but the Attendence of the Trustees of the People upon the Interest and Affairs of the People: And as it is the Part and Business of the People, for whole Sake alone all publick Matters are, or ought to be transacted, to see whether they be well or ill transacted, so it is the Interest, and ought to be the Ambition, of all honest Magistrates, to have their Deeds openly examined, and Publickly scann'd[.]
• Freedom of Speech is ever the Symptom, as well as the Effect of a good Government. In old Rome, all was left to the Judgment and Pleasure of the People, who examined the publick Proceedings with such Discretion, & censured those who administred them with such Equity and Mildness, that in the space of Three Hundred Years, not five publick Ministers suffered unjustly. Indeed whenever the Commons proceeded to Violence, the great Ones had been the Agressors.
• Guilt only dreads Liberty of Speech, which drags it out of its lurking Holes, and exposes its Deformity and Horrour to Day-light.
• The best Princes have ever encouraged and Promoted Freedom of Speech; they know that upright Measures would defend themselves, and that all upright Men would defend them.
• Misrepressentation of publick Measures is easily overthrown, by representing publick Measures truly; when they are honest, they ought to be publickly known, that they may be publickly commended, but if they are knavish or pernicious, they ought to be publickly exposed, in order to be pubickly detested.
• Freedom of speech is the great bulwark of liberty; they prosper and die together: And it is the terror of traitors and oppressors , and a barrier against them. It produces excellent writers, and encourages men of fine genius.
• All Ministers … who were Oppressors, or intended to be Oppressors, have been loud in their Complaints against Freedom of Speech, and the License of the Press; and always restrained, or endeavored to restrain, both.
• Thomas Jefferson , First Inaugural Address , March 4, 1801.
• John Adams , in a letter to Thomas Jefferson , 15 July, 1817.
• Thomas Jefferson , Letter to Roger Weightman, June 24, 1826, in The Life and Selected Writings of Thomas Jefferson , ed. Adrienne Koch and William Peden (New York: Modern Library, 1944), p. 729.
• James Madison , Letter to W.T. Barry ( 1822-08-04 )
• Alexis de Tocqueville , Democracy in America , Volume I (1835), Chapter XV
• Soren Kierkegaard Either/Or Part I (1843), Swenson p. 19.
• Soren Kierkegaard , as quoted in The Fitzhenry & Whiteside Book of Quotations (1981), p. 172.
• James Russell Lowell , A Fable for Critics (1848), Pt. V - Cooper , st. 3.
• Oregon Constitution , (1857), Article I, Section 8.
• Karl Marx and Friedrich Engels , The German Ideology ca. April or early May 1846

• John Stuart Mill , On Liberty (1859) Ch. 2, Mill (1985). On Liberty . Penguin. pp. p. 108.  
• John Stuart Mill , On Liberty , (1859).
• Wendell Phillips , oration delivered at Daniel O'Connell celebration, Boston (6 August 1870), published in Wendell Phillips: The Agitator (1890) by William Carlos Martyn, p. 563
• Robert G. Ingersoll , The Great Infidels (1881)
• Robert G. Ingersoll , The Liberty of Man, Woman and Child (1877)
• Robert G. Ingersoll , in an appeal to the jury in the trial of C.B. Reynolds for blasphemy (May 1887) .
• Charles Bradlaugh , Speech at Hall of Science c. 1880 quoted in An Autobiography of Annie Besant ; reported in Edmund Fuller, Thesaurus of Quotations (1941), p. 398; reported as unverified in Respectfully Quoted: A Dictionary of Quotations (1989).
• Frederick Douglass , Plea for Free Speech in Boston (8 June 1880)
• Mark Twain , Following the Equator , Vol. 1 (1897), ch. 20.
• Evelyn Beatrice Hall , Ch. 7 : Helvetius: The Contradiction (1906), p. 199. Often misattributed to Voltaire .
• Voltairine de Cleyre , "Anarchism & American Traditions" in Mother Earth (December 1908/January 1909)
• A poem by Rabindranath Tagore about freedom of expression. The original Bengali language poem, "Chitto jetha bhayashunyo", was published in 1910 and included in the collection Gitanjali by Tagore.
• William E. Borah , remarks in the Senate (April 19, 1917), Congressional Record , vol. 55, p. 837.
• Eugene V. Debs , speech to the Socialist party of Ohio state convention, Canton, Ohio (June 16, 1918); republished in Jean Y. Tussey, ed., Eugene V. Debs Speaks (1970), p. 244. This was Debs's most famous speech. It was a socialist antiwar speech while the United States was at war, and it was used against him at his trial. Debs was convicted under the Espionage Law and sentenced to 10 years in prison. President Warren G. Harding commuted the sentence in 1921.
• Woodrow Wilson , "That Quick Comradeship of Letters," address at the Institute of France, Paris (May 10, 1919); in Ray Stannard Baker and William E. Dodd, eds., The Public Papers of Woodrow Wilson (1927), vol. 5, p. 484.
• Louis Brandeis , ( International News Service v. Associated Press , 1918).
• Benjamin N. Cardozo , Palko v. Connecticut , 302 U.S. 319, 327, (1937)
• Winston Churchill , Broadcast to the United States and to London , 16 October 1938
• Winston Churchill , October 13, 1943 Hansard, United Kingdom Parliament, Commons, Coalmining Situation, HC Deb, volume 392, cc920-1012.
• Zechariah Chafee ; in Chafee (1920). Freedom of Speech . Harcourt, Brace and Howe. pp. p. 366.  
• Clarence Darrow Address to the court in People v. Lloyd (1920)
• Oliver Wendell Holmes, Jr. , ( Abrams v. United States , 1919).
• Oliver Wendell Holmes, Jr. , Schenck v. United States , 249 U.S. 52 (1919).
• Often paraphrased as: "Freedom of speech does not give a person the right to shout 'Fire!' in a crowded theatre."
• Freedom is always the freedom of dissenters .
• Variant: "Freedom is always and exclusively freedom for the one who thinks differently."
• Julian , As quoted in The Works of the Emperor Julian (1923) by Wilmer Cave France Wright, p. 47
• H. L. Mencken , The Sad Case of Tennessee in the Chicago Tribune (March 14, 1926)
• Louis Brandeis , ( Whitney v. California , 1927).

• Oliver Wendell Holmes, Jr. , ( United States v. Schwimmer , 1929).
• Charles Evans Hughes , ( Near v. Minnesota , 1931).
• William Allen White , "To an Anxious Friend," editorial, The Emporia (Kansas) Gazette (July 27, 1922), Russell H. Fitzgibbon, compiler, White, Forty Years on Main Street (1937), p. 285.
• Charles Evans Hughes , Lovell v. City of Griffin , 303 U.S. 444 (1938).
• Frank Murphy (1940). Thornhill v. Alabama . Supreme Court of the United States . pp. 310 U.S. 88, 95.  
• Rosa Luxemburg , Reported in Paul Froelich, Die Russiche Revolution (1940).
• Franklin D. Roosevelt , message to Congress, 6 January 1941.
• Felix Frankfurter , Milk Wagon Drivers Union of Chicago, Local 753. v. Meadowmoor Dairies, Inc. , 312 U.S. 287, 293 (1941).
• Robert H. Jackson (1943). West Virginia State Board of Education v. Barnette . Supreme Court of the United States . pp. 319 U.S. 624, 638.  
• George Orwell , "As I Please," Tribune (28 April 1944)
• George Orwell , "Freedom of the Park", Tribune (7 December 1945)
• Mahatma Gandhi in Jews and Palestine (July 1946), as quoted in The Gandhi Reader: A Sourcebook of His Life and Writings , p. 327
• George Orwell , "The Freedom Defence Committee" in "The Socialist Leader (18 September 1948); also in The Collected Essays, Journalism, & Letters, George Orwell; Vol. IV : In front of your nose, 1945-1950 (2000), p. 447
• United Nations General Assembly (December 10, 1948). Universal Declaration of Human Rights . Palais de Chaillot , Paris : United Nations . pp. Article 19.   Text
• George Orwell , Nineteen Eighty-Four (1949)
• George Orwell , Original preface to Animal Farm ; as published in George Orwell : Some Materials for a Bibliography (1953) by Ian R. Willison
• William O. Douglas , "The One Un-American Act," Speech to the Author's Guild Council in New York, on receiving the 1951 Lauterbach Award (December 3, 1952) [1]
• Adlai Stevenson , Adlai's Almanac: The Wit and Wisdom of Stevenson of Illinois (1952), p. 43.
• Adlai Stevenson , speech to the state committee of the Liberal party, New York City (August 28, 1952); in The Papers of Adlai E. Stevenson (1974), vol. 4, p. 63.
• Hugo Black (December 15, 1952), Weiman v. Updegraff , 344 U.S. 183 at 192-194 (Black, J., concurring).
• Albert Einstein , Ideas and Opinions by Albert Einstein (1954), p. 32.
• Walter Lippmann , Essays in the Public Philosophy (1955), chapter 9, section 3, p. 129–30.
• Earl Warren , Chief Justice of the United States ( Roth v. United States , 1957).
• William O. Douglas , Associate Justice of the Supreme Court of the United States ( Roth v. United States , 1957).
• William O. Douglas , Associate Justice of the Supreme Court of the United States ( Roth v. United States , 1957)
• John F. Kennedy , “Remarks on the 20th Anniversary of the Voice of America (February 26, 1962)

• William J. Brennan, Jr. , Associate Justice of the Supreme Court of the United States ( New York Times Co. v. Sullivan , 1964).
• William O. Douglas , Associate Justice of the Supreme Court of the United States ( Memoirs v. Massachusetts , 1966).
• John Marshall Harlan II , Associate Justice of the Supreme Court of the United States ( Curtis Publishing Company v. Butts , 1967).
• Constitution of the Commonwealth of Pennsylvania (1968), Article 1, Section 7
• Martin Luther King, Jr. I've Been to the Mountaintop (1968) > Speech delivered at Bishop Charles Mason Temple in Memphis, Tennessee (3 April 1968)
• Thurgood Marshall , Associate Justice of the Supreme Court of the United States ( Stanley v. Georgia , 1969).

• Abe Fortas , ( Tinker v. Des Moines Independent Community School District , 1969).
• Hugo Black , ( New York Times Company v. United States , 1971).
• Murray Gurfein June 19, 1971 in United States v. N.Y. Times Co. , 328 F. Supp. 324, 331 (S.D.N.Y. 1971) .
• Potter Stewart , Associate Justice of the Supreme Court of the United States ( United States v. Thirty-Seven Photographs , 1971).
• William O. Douglas , ( Branzburg v. Hayes , 1972).
• George Orwell , "The Freedom of the Press" (1972)
• Noam Chomsky , Necessary Illusions (1989)
• Noam Chomsky , Manufacturing Consent: Noam Chomsky and the Media , 1992
• Noam Chomsky , The Common Good , 1998

• Warren E. Burger , Chief Justice of the United States ( Nebraska Press Association v. Stuart , 1976).
• William Rehnquist , Chief Justice of the United States ( Hustler Magazine v. Falwell , 1988).
• Chief Justice William Rehnquist , Hustler Magazine v. Falwell , 485 U.S. 46 (1988).
• William J. Brennan, Jr. , Associate Justice of the Supreme Court of the United States ( Texas v. Gregory Lee Johnson , June 21, 1989).
• Justice William J. Brennan, Jr. , Texas v. Johnson , 491 U.S. 397 (1989).
• Salman Rushdie , In Good Faith (1990), p. 6.
• Anthony Kennedy , International Society for Krishna Consciousness v. Lee , 505 U.S. 672, 672 (1992) (concurring).
• Eleanor Holmes Norton , "Support for Free Speech" , Congressional Record , Volume 141, Number 71 (Tuesday, May 2, 1995), United States House of Representatives , Page H4448.
• Chief Justice Brian Dickson (for the majority), Supreme Court of Canada , R v Keegstra (1990) 3 SCR 697 , (December 13, 1990)
• Ray Bradbury , as quoted in "Bradbury Talk Likely to Feature the Unexpected" by Anne Gasior, Dayton Daily News (1 October 1994), City Edition, Lifestyle/Weekendlife Section, p. 1; republished in Conversations with Ray Bradbury (2003) by Steven Louis Aggelis (PDF), p. 104
• Jerrold Nadler , United States House of Representatives ( "Free Speech on the Internet" , Congressional Record , March 19, 1997).
• Wendy M. Grossman (1997). Net.wars . New York University Press . p. 90. ISBN 0814731031 .  
• Sam Farr , Congressional Record , " Freedom of Speech, Freedom of the Press ", (November 7, 1997).
• Kreshia Thomas, a black teenager who put herself in harm's way to protect a white man wearing Nazi tattoos and Confederate flag clothing from being beaten and kicked by an angry mob that thought he supported the racist Ku Klux Klan Wynne, Catherine (2013). The teenager who saved a man with an SS tattoo . British Broadcasting Corporation.

• John Paul Stevens , Concurring, Nixon v. Shrink Missouri Government PAC , 528 U.S. 377 (2000).
• Anthony Kennedy , ( Ashcroft v. Free Speech Coalition , 2002).
• Ruth Bader Ginsburg , Associate Justice of the Supreme Court of the United States , Interview with Nina Totenberg of National Public Radio (May 2, 2002).

• Mike Godwin (2003). Cyber Rights: Defending Free Speech in the Digital Age . Massachusetts Institute of Technology . p. 217. ISBN 0812928342 .  
• Mike Godwin (2003). Cyber Rights: Defending Free Speech in the Digital Age . Massachusetts Institute of Technology. p. 16. ISBN 0812928342 .  
• Mike Godwin (2003). Cyber Rights: Defending Free Speech in the Digital Age . Massachusetts Institute of Technology. p. 17. ISBN 0812928342 .  
• Mike Godwin (2003). Cyber Rights: Defending Free Speech in the Digital Age . Massachusetts Institute of Technology. p. 19. ISBN 0812928342 .  
• Ron Paul , Congressional Record , " An Indecent Attack on the First Amendment ", (March 10, 2004).
• Salman Rushdie , As quoted in "The right to be downright offensive" by Jonathan Duffy in BBC News Magazine (21 December 2004)
• Jimmy Wales , cited in — Slashdot readers' questions (July 28, 2004). " Wikipedia Founder Jimmy Wales Responds ". Slashdot . Retrieved on 2008-01-04 .  
• Arundhati Roy , An Ordinary Person's Guide to Empire (2005), p. 48

• Gilbert S. Merritt, Jr. , ( Speech at the University of Oregon , 2004). — cited in: Gilbert S. Merritt, Speech at the University of Oregon , Nashville, TN: 2004. cited in — Merritt, Gilbert S. (2006). "The Lesson of Sullivan Has Been Forgotten". in Edelman, Rob. Freedom of the Press . Greenhaven Press. p. 75.   .
• Bill Moyers , Speech to the Society of Professional Journalists (11 September 2004)
• Elena Kagan , ( Harvard Law Bulletin , 2005). — cited in: London, Robb (Spring 2005). "Faculty Viewpoints: Can Reporters Refuse to Testify?". Harvard Law Bulletin . .

• Samuel Peter Nelson (2005). Beyond the First Amendment: The Politics of Free Speech and Pluralism . Johns Hopkins University Press. p. 166. OCLC 56924685 .  
• Jonah Goldberg , "Dissident Chicks" (12 February 2007), The Corner , National Review
• John Paul Stevens , ( Deborah Morse et al. v. Joseph Frederick , 2007).
• Anthony Lewis (2007). Freedom for the Thought That We Hate; A Biography of the First Amendment . Basic Books. p. 186. ISBN 0465039170 .  
• Peter Gelderloos (2007), How Nonviolence Protects the State
• Stephen Breyer Active Liberty: Interpreting Our Democratic Constitution . Alfred A. Knopf . 2008. p. 42. ISBN 0-307-26313-4 . OCLC 59280151 .   .
• Stephen Breyer (2008). Active Liberty: Interpreting Our Democratic Constitution . Alfred A. Knopf . p. 51. ISBN 0-307-26313-4 . OCLC 59280151 .   .
• Stephen Breyer (2008). Active Liberty: Interpreting Our Democratic Constitution . Alfred A. Knopf . p. 54. ISBN 0-307-26313-4 . OCLC 59280151 .   .
• Stephen Breyer (2008). Active Liberty: Interpreting Our Democratic Constitution . Alfred A. Knopf . p. 46. ISBN 0-307-26313-4 . OCLC 59280151 .   .

• Alan Dershowitz (2008). Finding, Framing, and Hanging Jefferson: A Lost Letter, a Remarkable Discovery, and Freedom of Speech in an Age of Terrorism . John Wiley & Sons . p. 30. ISBN 0470450436 .  
• Alan Dershowitz (2008). Finding, Framing, and Hanging Jefferson: A Lost Letter, a Remarkable Discovery, and Freedom of Speech in an Age of Terrorism . John Wiley & Sons . p. 37. ISBN 0470450436 .  
• Alan Dershowitz (2008). Finding, Framing, and Hanging Jefferson: A Lost Letter, a Remarkable Discovery, and Freedom of Speech in an Age of Terrorism . John Wiley & Sons . p. 191. ISBN 0470450436 .  
• Candice Miller , "Detroit Free Press Wins Pulitzer Prize" , Congressional Record , Volume 155, Number 59 (Wednesday, April 22, 2009), United States House of Representatives , Page H4588.
• Mike Pence , Congressional Record , " World Press Freedom Day ", (May 4, 2009).
• Monika Bickert, Facebook 's head of global policy management, as reported by CNBC , January 17, 2018
• Hillary Rodham Clinton , United States Department of State ( "Secretary of State Clinton on Internet Freedom" , Office of the Spokesman , January 21, 2010).
• Alexander Cockburn , "The Hate Crimes Bill: How Not to Remember Matthew Shepard" , Counterpunch.org , June 26–28, 2010.
• Anthony Kennedy , Citizens United v. Federal Election Commission , 558 U.S. 310 (2010) ( Opinion of the Court ).
• Ayaan Hirsi Ali (2010). Nomad: From Islam to America . Knopf Canada. p. 215. ISBN 0307398501 .  
• Ayaan Hirsi Ali (2010). Nomad: From Islam to America . Knopf Canada. p. 214. ISBN 0307398501 .  
• Julian Assange , cited in — " Julian Assange answers your questions ". The Guardian . December 3, 2010 . Retrieved on October 23, 2012 .  
• Naomi Klein , No Logo , 10th anniversary edition (2009: Vintage Canada, an imprint of Random House of Canada, Ltd.), ISBN 978-0-307-39909-0 , p. 284. Previously published under the title No Logo: Taking aim at the brand bullies (2000: Vintage Canada), ISBN 0-676-97282-9 , p. 284.
• Ai Weiwei in: " Artist Ai Weiwei: China Crushes Dissenting Voices ," in: Fox News, June 11, 2012.
• Robert J. Samuelson (April 6, 2014). " In politics, money is speech ". Washington Post . Retrieved on April 7, 2014 .  

In American democracy, this free speech plays two vital roles. The first is well recognized. It is to shape public opinion and to influence elections that, in turn, determine the social climate and steer government. We cherish "the marketplace of ideas" because (we assume) it allows us, through give and take, to arrive at better ideas and to grope our way toward consensus on hard issues.

Free speech's second function is less understood. It buttresses the political system's legitimacy. It helps losers, in the struggle for public opinion and electoral success, to accept their fates. It helps keep them loyal to the system, even though it has disappointed them. They will accept the outcomes, because they believe they've had a fair opportunity to express and advance their views. There's always the next election. Free speech underpins our larger concept of freedom.

• Salman Rushdie , at Dalkey Book Festival debate; as quoted in "Salman Rushdie: ‘You have to accept a certain level of disrespect’" Sorcha Hamilton, The Irish Times , Jul 21, 2014.
• Barack Obama , Remarks by President Obama to the People of Estonia i.e. students, young professionals, civil leaders, and the people of Estonia at the Nordea Concert Hall in Tallinn, Estonia on September 3, 2014
• Sam Harris , "After Charlie Hebdo and Other Thoughts" (21 January 2015)
• Inna Shevchenko of Femen , speaking at the Art, Blasphemy and Freedom of Expression café event, Krudttoennen café, Oesterbro, Copenhagen, on 14 February 2015. She was interrupted by a gunman believed to be targeting Lars Vilks , another speaker at the event.
• "Danish shooting: Audio of moment gunman struck in Copenhagen cafe" . BBC News online. 14 February 2015.  
• Mark Steyn , "Stay Quiet and You'll Be Okay" steynonline.com (9 May 2015)
• Laura Kipnis , cited by Rachel Cooke in "Sexual paranoia on campus – and the professor at the eye of the storm" The Observer (London, 2 April 2017).
• Jordan Peterson , 2017 Maps of Meaning 4: Marionettes and Individuals (Part 3) [54:55-56:15]
• Andrew Ferguson , "Hurrah for the First Amendment, but..." (23 March 2018), The Weekly Standard
• Haim Watzman , In a letter of resignation from The Jerusalem Report , on the dismissal of Avi Katz.
• Allen C. Guelzo , "Free Speech and Its Present Crisis: In today’s America, the right to express one’s opinion is threatened by activists and authorities alike." (October 2018), City Journal
• Sondra London , Facebook, in response in a thread comparing the Confederate States of America to the National Socialist German Workers' Party (Nazi Party). (4 March 2020).
• Donald Trump , Farewell Address to the Nation , (January 19, 2021)
• Rikki Schlott, "Generation Z’s Silent Free Speech Crisis" , The Epoch Times (April 4, 2021)
• Stella Morabito, "Yes, Hillary Clinton Is A Big Fan Of ‘The Weaponization Of Loneliness’" , The Federalist (August 11, 2023)
• David Hutt, "What to do about ‘freedom from speech?’" , Radio Free Asia (September 24, 2023)
• FIRE (Foundation for Individual Rights and Expression), FIRE’s 10 common-sense reforms for colleges and universities (Original date of publication not given; accessed January 3, 2024)
• Marco Respinti , "Two Ahmadis Shot Dead in Pakistan: A Needed Reflection on the Nature of Liberty" , Bitter Winter (June 12, 2024)
• First Amendment to the United States Constitution
• Free Speech Movement
• Freedom movement
• Freedom of assembly
• Freedom of religion
• Freedom of the press
• Freedom of education
• Freethought
• Human rights
• Independence

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First Amendment :

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.

The Free Speech Clause went through several iterations before it was adopted as part of the First Amendment . James Madison drafted an initial version of the speech and press clauses that was introduced in the House of Representatives on June 8, 1789. Madison’s draft provided: “The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable.” 1 Footnote Annals of Cong. 434 (1789) . Madison had also proposed language limiting the power of the states in a number of respects, including a guarantee of freedom of the press. Id. at 435 . Although passed by the House, the amendment was defeated by the Senate. The House of Representatives special committee rewrote Madison’s language to make the speech and press clauses read: “The freedom of speech and of the press, and the right of the people peaceably to assemble and consult for their common good, and to apply to the government for redress of grievances, shall not be infringed.” 2 Footnote Id. at 731 . The Senate subsequently rewrote the speech and press clauses to read: “That Congress shall make no law abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble and consult for their common good, and to petition the government for a redress of grievances.” 3 Footnote The Bill of Rights: A Documentary History 1148–49 (B. Schwartz ed. 1971) . Later, the Senate combined the religion clauses and the speech and press clauses 4 Footnote Id. at 1153 . and the House and Senate agreed to final language in conference.

There was relatively little debate over the speech and press clauses in the House, and there is no record of debate over the clauses in the Senate. 5 Footnote The House debate insofar as it touched upon this amendment was concerned almost exclusively with a motion to strike the right to assemble and an amendment to add a right of the people to instruct their Representatives. 1 Annals of Cong. 731–49 (Aug. 15, 1789) . During debate over the clauses, Madison warned against the dangers that would arise “from discussing and proposing abstract propositions, of which the judgment may not be convinced. I venture to say, that if we confine ourselves to an enumeration of simple, acknowledged principles, the ratification will meet with but little difficulty.” 6 Footnote Id. at 738 . The general statement of these “simple” principles, however, gave rise to controversy when applied to specific government actions. 7 Footnote For example, Madison refused to concur officially in President George Washington’s condemnation of “[c]ertain self-created societies” —political clubs supporting the French Revolution—and he successfully deflected Federalist interest in censuring such societies. I. Brant , James Madison: Father of the Constitution 1787–1800 , at 416–20 (1950) . “If we advert to the nature of republican government,” Madison told the House, “we shall find that the censorial power is in the people over the government, and not in the government over the people.” 4 Annals of Cong. 934 (1794) . However, while a member of his county’s committee on public safety, Madison had promoted prosecution of Loyalist speakers and the burning of their pamphlets during the Revolutionary period. 1 Papers of James Madison 147, 161–62, 190–92 (W. Hutchinson & W. Rachal, eds., 1962) . Writing to Madison in 1788, Jefferson stated: “A declaration that the Federal Government will never restrain the presses from printing anything they please, will not take away the liability of the printers for false facts printed.” 13 Papers of Thomas Jefferson 442 (J. Boyd ed., 1955) . A year later, Jefferson suggested to Madison that the free speech-free press clause might read something like: “The people shall not be deprived or abridged of their right to speak, to write or otherwise to publish anything but false facts affecting injuriously the life, liberty, property, or reputation of others or affecting the peace of the confederacy with foreign nations.” 15 Papers , supra , at 367 .

The Sedition Act of 1798 sparked one such controversy that “crystallized a national awareness of the central meaning of the First Amendment .” 8 Footnote N.Y. Times Co. v. Sullivan, 376 U.S. 254, 273 (1964) . The law punished anyone who would “write, print, utter or publish . . . any false, scandalous and malicious writing or writings against the government of the United States, or either house of the Congress of the United States, or the President of the United States, with intent to defame . . . or to bring them . . . into contempt or disrepute.” 9 Footnote 1 Stat. 596 (1798) While Thomas Jefferson and Madison condemned the act as unconstitutional, the Adams Administration used it to prosecute its political opponents. 10 Footnote See J. Smith , Freedom’s Fetters: The Alien and Sedition Laws and American Civil Liberties 159 et seq. (1956) . Although the Supreme Court never ruled the Sedition Act unconstitutional prior to its expiration in 1801, the Court later recognized “a broad consensus” from the political and judicial branches that the act was unconstitutional. 11 Footnote N.Y. Times Co. , 376 U.S. at 276 .

Elon Musk’s feud with Brazilian judge is much more than a personal spat − it’s about national sovereignty, freedom of speech and the rule of law

Research associate, University of Virginia

Disclosure statement

Yasmin Curzi de Mendonça does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.

University of Virginia provides funding as a member of The Conversation US.

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It is easy to get distracted by the barbs, swipes and bluster of the ongoing and very public spat between the world’s richest man and a fierce justice on Brazil’s highest court. Elon Musk, the billionaire owner of X, posts regularly of his contempt for Supreme Court Justice Alexandre de Moraes – a man Musk has labeled a “dictator ” and “ Brazil’s Darth Vader .” He makes these comments on a social media platform that Moraes has banned in Latin America’s most populous country as part of a lengthy campaign against disinformation.

But as an expert on Brazilian digital law , I see this as more than just a bitter personal feud. X’s legal battle with Brazil’s Supreme Court raises important questions about platform regulation and how to combat disinformation while protecting free speech. And while the focus is on Brazil and Musk, it is a debate being echoed around the world.

Countdown to the big fight

Things came to a head between Musk and Moraes in August 2024, but the battle has been years in the making.

In 2014, Brazil passed the “ Marco Civil da Internet ” or the “Internet Bill of Rights,” as it is commonly known. Backed by bipartisan support, this framework for internet regulation outlined principles for protecting user privacy and free speech while also creating penalties for platforms that break the rules .

It included a “judicial notice and takedown” system under which internet platforms are liable for harmful user-generated content only if they fail to remove the content after receiving a specific court order.

The approach was designed to strike a balance between protecting free speech and ensuring that illegal and harmful content can be removed. It prevents social media platforms, messaging apps and online forums from being held automatically responsible for users’ posts, while empowering courts to intervene when necessary.

But the 2014 law stops short of creating detailed rules for content moderation, leaving much of the responsibility in the hands of platforms such as Facebook and X.

And the rise of disinformation in recent years, especially around Brazil’s 2022 presidential elections , exposed the limitations of the framework.

The president at the time, far-right populist Jair Bolsonaro , and his supporters were accused of using social media platforms such as X to spread falsehoods , sow doubts about the integrity of Brazil’s electoral system and incite violence. When Bolsonaro was defeated at the ballot by the leftist Luiz Inácio Lula da Silva , an online campaign of election denialism flourished. It culminated in the Jan. 8, 2023, storming of the Brazilian Congress, Supreme Court and the presidential palace by Bolsonaro’s supporters – an event similar to the U.S. Capitol riots two years earlier.

The fight gets personal …

In response to the disinformation campaigns and the attacks, Brazil’s Supreme Court initiated two inquiries – the digital militias inquiry and the antidemocratic acts inquiry – to investigate groups involved in the plot.

As part of those inquiries, the Supreme Court requested social media platforms – such as Facebook, Instagram and X – to hand over the IP addresses and suspend accounts linked to those illegal activities.

But by this time, Musk, who has described himself as a free-speech fundamentalist , had acquired the platform, promising to support free speech, reinstate banned accounts and decrease significantly the platform’s content moderation policy.

As a result, Musk has been openly defying the Supreme Court’s orders since the beginning. In April 2024, X’s global government affairs team began sharing information with the public on what it deemed as “illegal” demands from the Supreme Court.

The feud escalated in late August when X’s legal representative in Brazil resigned and Musk refused to name a new legal representation – a move that was interpreted by Moraes as an attempt to evade the law. In response, Moraes ordered the platform’s ban on Aug. 31, 2024.

The move was accompanied by heavy penalties for Brazilians attempting to circumvent the ban. Anyone using virtual private networks, or VPNs, to access X faces daily fines of nearly US$9,000 – more than the average annual income of many Brazilians. Those decisions were confirmed by a panel consisting of five Supreme Court justices on Sept. 2, 2024. Amid criticism of judicial overreach, however, the full court of 11 justices will discuss and potentially revisit this part of Moraes’ decision.

… then turns political

The X v. Brazil Supreme Court fight has become deeply politicized. On Sept. 7, thousands of Bolsonaro supporters took part in a “pro-free speech” protest. Lula’s administration and the Supreme Court have become targets, with the opposition and right-wing factions framing the platform’s suspension as a symbol of state overreach .

The rhetoric contrasts sharply with the more balanced, deliberative efforts to regulate platforms that began over a decade ago with the Marco Civil da Internet. It also highlights the challenge of finding a balance between free speech and combating disinformation in a deeply polarized environment – an issue that Brazil is far from alone in grappling with.

The political heat surrounding the banning of X doesn’t bode well for Brazil’s ongoing efforts to counter online disinformation and hold platforms accountable for harmful content.

A “ fake news bill ,” as it has been dubbed by Brazilian media, was introduced by the country’s Congress in 2020. It seeks to create oversight mechanisms and increase transparency around political advertising and content moderation policies.

But despite its good intentions and a very light “regulated self-regulation” approach, the last version of the draft bill was blocked in the Brazilian Congress after three years of debate.

It follows a campaign by right-wing politicians and Big Tech lobbyists who labeled the legislation a “ censorship bill ,” arguing that it would infringe on free speech and stifle political discourse. As of now, the fate of the bill looks uncertain.

Meanwhile, on Aug. 23, the Supreme Court announced that it will look at two key parts of the Marco Civil as part of a judicial review taking place in November.

The first is the “judicial notice and takedown” process that critics complain is too slow and allows platforms to choose not to adopt more robust content moderation mechanisms. Supporters, however, maintain that judicial oversight is necessary to prevent platforms from arbitrarily removing content, which could lead to censorship.

The second area under review is the part of the Marco Civil that outlines the penalties for companies that fail to follow the rules. The debate centers on whether the current penalties, particularly service suspensions, are proportionate and constitutional. Critics argue that suspending an entire platform violates users’ rights to free speech and access to information, while proponents insist that it is a necessary tool to ensure compliance with Brazilian law and safeguard sovereignty.

The fate of both the “fake news bill” and the Supreme Court’s review could set in place new legal standards for platforms in Brazil and determine how far the country can go in enforcing its laws against global tech companies as it seeks to battle disinformation.

And while the Supreme Court did not directly link the review to the ongoing feud with X, the fight with Musk forms the unavoidable political backdrop to discussions over the future direction of Brazil’s experiment in platform regulation. As such, the fallout of this seemingly personal spat could have major regulatory consequences for Brazil and potentially other countries.

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• Twitter ban
• X (formerly Twitter)
• Luiz Inácio “Lula” da Silva

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Freedom of expression

WashU has a proud history of promoting freedom of expression. The free exchange of ideas is a cornerstone of higher education and we are committed to upholding this fundamental value.

Lively intellectual conversations are as commonplace as comments about the weather. As chancellor, it’s important that I help cultivate a campus community in which everyone has a voice, the freedom to exercise their rights and duties to speak out against injustice and inequity, and an opportunity to learn from one another without insult or intimidation. Chancellor Andrew D. Martin, from “Critical thinking, Free Speech, and Civil Discourse”

To clarify our commitment, the Faculty Senate Council adopted the following statement in 2016. This statement is substantially similar to the 2014  Chicago Principles :

Statement of principle regarding freedom of expression

Washington University in St. Louis begins its mission statement by asserting that the institution’s primary aims are “to discover and disseminate knowledge, and protect the freedom of inquiry through research, teaching and learning.” A commitment to the open exchange of ideas and information is fundamental to achieving these goals. Consequently, the university affirms its unwavering commitment to freedom of expression and the free exchange of ideas.

Statement of Principle Regarding Freedom of Expression (PDF)

Other WashU policies regarding freedom of expression :

• Policy on Academic Freedom, Responsibility and Tenure
• Balancing Rigor and Respect in the Learning Environment
• Demonstrations and Disruption
• Social Media Policy

Statements from university leadership through the years

“To fulfill that critical aspect of our mission — to truly make a positive difference, individually and collectively — we must be a community in which every one of us feels empowered to offer ideas and perspectives. We charged our faculty with the important task of developing this principle to help us sustain an open, creative, innovative and intellectually stimulating environment on our campuses.”

— Former Chancellor Mark S. Wrighton

“As an institution, we affirm the importance of academic freedom and the rigor it provides to our learning environments. At the same time, we remain mindful of the varied responses that subject matter can evoke in learners, especially those who have experienced trauma. We believe that upholding the values of academic freedom and maintaining respect for individual responses to course material are both important goals.”

— Standing Committee on Facilitating Inclusive Classrooms

“In the 1950s, when many universities caved in to pressure to dismiss faculty for political reasons, Washington University received national recognition for supporting the rights of those with very unpopular views. Thus, the university safeguards the efforts of faculty and students who seek to come closer to the truth and then report what they find. This protection, called academic freedom, not only serves the interests of the individual, but it also promotes the well-being of society. … We humans will always be wrestling with the extent and limits of our freedoms and of our responsibilities. To do so with civility and respect for the views of others is in Washington University’s tradition and remains our continuing challenge.”

— Former Chancellor William H. Danforth

Faculty experts

“Our debates over free speech are in many ways akin to conflicts over reckoning honestly with the painful parts of our nation’s history, like slavery and structural racism or violence and discrimination toward native Americans, immigrants, and others. A commitment to free speech, even when it hurts, is parallel to a commitment to free inquiry and open-eyed attention to the worst as well as the best we have been as a people.”

— R. Marie Griffith

“Protecting free speech is essential for social progress. Speaking and writing are the most potent tools that liberal democracy offers for changing allocations of political and social power.”

—  Greg Magarian, Washington Magazine, Sept. 9, 2019

“There have probably never been so few government restrictions on expression in any society at any point in human history. But at the same time, the United States is experiencing an undeniable free speech crisis. People are trying to silence each other; people aren’t listening to each other. Many times, it seems that different members of our society are living in parallel, almost untouching realities. If we’re interested in building a cohesive, democratic society that produces good governing decisions more often than not, when it comes to the free speech side of things, I think we’re in a very bad place.”

—  Neil Richards, St. Louis Public Radio, Jan. 28, 2021

“Political disruption can compel people to pay attention to problems that they would rather ignore.”

— Clarissa Rile Hayward

“Free speech is about us and who we are. It’s a garbage-in, garbage-out problem. We can talk about lots of people and actors we want to blame — social media, private companies, government — but at the end of the day, all of these actors are responding to what we do. And they’re complicating it with algorithms and other motives, but at the end of the day, we’re forming the people we are, and that’s a problem.”

—  John Inazu, St. Louis Public Radio, Jan. 28, 2021