How far should the state defend a right to freedom of speech and to what extent should citizens be protected from free speech? Should the British government ban ‘extremist’ speakers from university settings or empower Ofcom to vet television programmes for ‘extremist’ content prior to broadcast? Should citizens and our media be free to caricature the Prophet Mohammed, deny the Holocaust, advocate the boycott of Israeli products, or ‘troll’ each other online? Should corporations be free to dominate media ownership, hoodwink us with misleading advertising, or influence elections and government policy through unlimited political donations?
The question of how far the state should defend the rights of its citizens to express themselves freely, and to hear others do the same, poses a number of more specific, but no less important, prior questions. It is important to be clear whether free speech can be defended as a right or only after careful cost-benefit analysis. What types of activities or categories of expression merit protection? What manner of defence might be most appropriate? Most importantly, why does free speech deserves protection by the state at all?
Should Free Speech be Defended as a Right?
Free expression, ‘the great bulwark of liberty’, is enshrined in international human rights instruments and underpins all other human rights. Free speech ‘constitutes one of the foundations of society, one of the basic conditions for its progress and for the development of every man.’ Yet it is impossible to cite a single, succinct and all-encompassing theory of free speech because none has yet been devised. There is instead a complex of overlapping arguments providing grounds for the protection of certain categories of expression and the prohibition of others. There exists a core of clear cases but the boundaries are ‘fuzzy’.
It is possible either to examine the value of free speech through the lens of human rights, or to take a purposive approach that weighs the consequences of supporting or suppressing free speech.
The Rights-based Approach
The human rights approach to free expression promotes speech as an intrinsically and self-evidently good end, rather than as an instrumentally effective means to other good ends. Rights-based arguments rest on normative claims about what should be valued for its own sake, rather than alleging desirable consequences.
These liberal arguments begin with a conception of, and a profound respect for, what it means to be a human being – possessing autonomy, dignity and equality – and they connect free speech to these concepts. Autonomy is restricted when people are denied access to the information they need to make up their own minds. Human dignity is affronted where personal choice is not respected. Equality is not upheld when the opinion of one speaker is suppressed and thereby impliedly judged to be inferior to the opinions of others.
One problem with rights-based arguments for free speech is that rights to dignity and equality, for example, may sometimes be promoted by suppressing, rather than by sanctioning, certain types of speech. Banning racist hate speech does more to maintain the dignity of the people it targets than to impinge on the dignity of the speaker who is grudgingly silenced. Restricting Rupert Murdoch’s freedom to dominate public discourse through media ownership, and capping political donations by the likes of Bernie Ecclestone, Michael Ashcroft, or Russian oligarchs, would collectively promote (political) equality among voters by levelling the platform between speakers.
Rights claims sometimes clash with one another and may be trumped by other, more pressing considerations, such as public safety or national security. More persuasive, perhaps, are consequentialist arguments for free expression, which rest on cost-benefit calculations as to likely outcomes.
The Consequentialist Approach
Consequentialist arguments, which provide the most common defence of the free speech doctrine, weigh the beneficial outcomes of speech against the calculated costs of suppression, and balance competing interests.
Why Should the State Defend Free Speech at all?
For John Stuart Mill and others, freedom is not merely an end in itself; free speech is valued, not for what it is, but for what it does. The instrumental value of free speech lies in serving the objectives of truth, democracy, self-fulfilment, societal progress and the protection of other rights. Consequentialists reject speech suppression on the grounds of distrust of government and disutility of censorship. Together, these grounds provide powerful justification for the state to defend free speech.
Discovery of Truth
The most familiar justification for free speech is that it promotes the discovery of truth and the avoidance of mistake, through what US Supreme Court Justice Oliver Wendell Holmes called a ‘marketplace of ideas.’ Where facts and opinions are freely exchanged in open discussion, ‘the best test of truth is the power of the thought to get itself accepted in the competition of the market’.
John Stuart Mill’s four overlapping arguments from truth together comprise ‘the classic version of the classic defence’ of free speech. First, if the suppressed view is true, then mankind misses an opportunity to exchange error for truth. Mill observed that, in human history, it is not unusual for the heresy of one age to be accepted as the official truth of the next,  as Galileo would confirm. Secondly, even if the suppressed opinion is only half-true, Mill recognised that the prevailing opinion on any subject is rarely the whole truth and it is only ‘by the collision of opinions that the remainder of the truth has any chance of being supplied’. Thirdly, even if the dissenting opinion is entirely wrong, the challenge it poses provides a useful opportunity to re-examine prevailing opinion and to be reassured that it can be relied on. As Mill argues strongly, unless we allow our views to be vigorously contested, we have no right to have confidence in them. Finally, unless we are pressed to defend our beliefs, they will lose their ‘vital effect’ and deteriorate into dogma.
The ‘marketplace of ideas’ is not perfectly efficient; it assumes that there is always an objectively verifiable truth to be found and that people have the capacity to recognise truth when they hear it. It also ignores that ‘gross inequality among communicators’ sometimes skews the debate. Guardian Journalist Owen Jones sees the Fourth Estate as a ‘political machine’ whose ownership is concentrated in the hands of a small number of exceptionally wealthy and politically motivated owners. As he sees it, the media frames and dominates debate in order to protect the interests and project the opinions of unelected media tycoons. He views media ownership as a ‘devastatingly effective’ and entirely unaccountable form of political power.
Nevertheless, far worse than market failures are the alternatives, which are censorship and indoctrination. Although not every view gets a fair hearing in reality, truth is still more likely to prevail in open discussion than without it. Free speech is a necessary, if not sufficient condition in the search for truth; it is also indispensable for good government.
Democracy and Distrust of Government
‘Laws and policies are not legitimate unless they have been adopted through a democratic process, and a process is not democratic if government has prevented anyone from expressing his convictions about what those laws and policies should be.’
Only through free discussion can people make fully informed electoral choices, influence government policy and hold policymakers properly to account. Free political speech is so vital to the workings of democracy that it is deemed worthier of protection than any other categories of expression. The legitimacy of the political process hinges on voters being free to ‘arm themselves with the power knowledge gives,’ and free to attempt to convince one another through public discourse. Free expression also provides a ‘safety valve’ for the venting of otherwise pent-up dissent.
Free political speech is ‘a palliative to the concentration of power.’ By allowing the exposure and redress of wrongs, free speech safeguards against government corruption and abuse of authority and inhibits state subversion of other rights and freedoms. When elected officials are mindful of public scrutiny, they may be deterred from behaving improperly. English law rightly encourages scrutiny by recognising a higher threshold for libel against public officials.
The Futility and Disutility of Censorship
Banning dissent does not eradicate it; it merely drives opposition underground where it can fester and become all the more virulent, but where it cannot be monitored or challenged. Early in 2015, in an attempt to stem jihadist recruitment among British students, the government issued new statutory guidance to university student unions requiring them to deny ‘extremist’ speakers a platform in universities. As Cicero said, ‘he who knows only his own side of the case knows little of that’; unless students are able to cross-examine radical views, they can have no confidence in the rightness of rejecting or opposing them. What is more, dangerous views will persist unless defeated in reasoned debate. Thomas Jefferson urged that we tolerate erroneous speech ‘so long as reason is left free to combat it’. Even though bad ideas may gain acceptance at times, ‘they tend to be discredited in the long run.’ The best answer to bad speech is not censorship, but good speech.
A ‘counter-terror ban’ might even confer credibility on a fringe movement since it could be interpreted as an admission by the censoring authority that the banned opinion cannot be defeated with reason. Since extremist recruiters are thought to target disaffected young people, the cachet of a banned movement driven underground could prove all the more alluring. This ill-judged ministerial directive may inadvertently assist the jihadist recruitment drive.
Another of the dangers of speech-restrictive laws is the ‘chilling effect’ on speakers. When Russian journalists are murdered, this is presumably the precise effect intended, but Mill warns against the dangers of stifling opposition. When people are deterred from revealing dissent for fear of prosecution or persecution, self-censorship will produce an atmosphere of intellectual conformity in which people simply disguise their opinions to match existing orthodoxies. Suppression leads to the withering of intellectual faculties and stifles progress in society. The US Supreme Court warned at the start of the McCarthyist 1950s that ‘the danger that citizens will think wrongly is serious, but less dangerous than atrophy from not thinking at all’.
Suppression can lead not only to atrophy, but to error. Former US Secretary of Defense, Robert McNamara, admitted that when leading China experts were purged from the State Department during the ‘McCarthy hysteria’, the loss of their expertise led the US government to misread China’s intentions towards Vietnam and to instigate a devastating and, as it became clear, a needless war.
Censorship often backfires. Voltaire was exiled and his books were banned yet, in his native France, his ideas were said to be the most widely read and admired of any thinker of his day. More recently, the Thatcher government attempted to deny the Irish Republican cause the ‘oxygen of publicity’ by banning broadcasters from featuring Sinn Fein spokespeople. Instead of blocking the transmission of Sinn Fein’s political message, news broadcasters continued to air footage of spokesmen Gerry Adams and Martin McGuinness and simply dubbed their voices with those of actors. The government appeared powerless to censor the Republican message, and foolish for having even tried.
The Home Office would do well to remember this as it considers moving the media regulator Ofcom into a censorship role and requiring it to vet TV programmes prior to transmission in order to deny access to the airwaves to ‘combat groups and individuals who reject our values’. Yet prior censorship is itself the strongest possible rejection of ‘our values’; contrary even to our own Commonwealth guidelines. Social media-savvy extremists will not be thwarted, but the government will have quashed yet another of our liberal freedoms and taken a step backwards in the struggle to prevent terrorist extremism from damaging our liberal way of life. As the then Culture Minister Sajid Javid wisely observed in a leaked memo, ‘other countries with a pre-transmission regulatory regime are not know for their compliance with rights relating to freedom of expression, and government may not wish to be associated with such regimes.’
Self-fulfilment and Societal Progress
There are also individualistic reasons to defend free speech. Mill speaks eloquently of the value of free expression for the self-development and autonomy of rational, intelligent beings, capable of driving society to intellectual and moral progress. Individuals should have the opportunity to cultivate their understanding by being exposed to, and empowered to refute, diverse opinions. Mill sees open discussion as mankind’s only route to wisdom.
It is suggested that free speech fosters pluralism, broadmindedness and tolerance of diverse and dissenting views, but in some cases these values may actually be promoted by restricting certain types of potentially harmful speech, such as discriminatory speech. Identifying the dividing line between harmful expressions and those that merely offend, shock or disturb is central to the question of how much speech should be defended.
What Speech is to be Defended and How Far?
A number of important human rights instruments recognise rights to freedom of expression, which include rights ‘to seek, to receive and to impart information and ideas’. Statements may be communicated through books, articles, poems and plays, films and works of art, photographs, programmes and podcasts, music and lyrics, symbols, speeches, blogs and tweets, and almost any other mode. Indeed, ‘expression’ may be interpreted so widely as to embrace any mode intended to communicate a message, including waving or burning a flag; wearing a badge, uniform or armband; taking part in a boycott; as well as ‘displays or symbols, failure to display them, demonstrations, many musical performances, and some bombings, assassinations and self-immolations.’
Yet even the most ardent proponents of free speech stop short of advocating boundless freedom of expression. Every country limits free speech to prevent certain types of harms, and international human rights agreements impose positive duties on state signatories to restrict harmful speech. Article 20 of the International Convention on Civil and Political Rights imposes duties to proscribe expressions of national, racial or religious hatred constituting incitement to violence, hostility or discrimination. Article 4 of the Convention on the Elimination of all Forms of Racial Discrimination requires criminalization of hate speech, hate crimes, the financing of racist activities and the prohibition of membership of racist organizations.
The value of a particular expression has much to do with the value of the larger purpose it serves, which ought to be weighed against competing rights and public interests. For example, certain infringements may be justified to protect rights to privacy, reputation and equality; to protect public interests in national security, public order and safety; as well as to prevent criminal threats, incitements to crime, libels, bribery, perjury and extreme hate speech. Balancing free speech against competing interests is clearly a delicate exercise that depends on all the circumstances. Prohibiting free speech is only justified in very limited cases and ‘every formality, condition, restriction or penalty imposed must be proportionate to the legitimate aim pursued.’
It is thus fairly straightforward to identify certain types of speech that are worthy of protection, in the interests of truth, democracy and the protection of rights, and to distinguish others which clearly ought to be restricted to prevent particular harms. Yet there remains a great expanse of grey area between these extremes, where it is exceptionally difficult to delineate a clear boundary between speech that should be protected and tolerated in a liberal society, and speech which ought to be regulated or suppressed. Mill famously defined the distinguishing criterion as harm, but there is considerable disagreement as to what constitutes harm, so the precise scope of the Millian principle is unclear.
To assist in locating the boundary between speech that the state ought to defend and speech that should be disallowed, it may be helpful to examine a few particular types of speech – hate speech, whistleblowing and ‘trolling’ – which could be said to straddle the dividing line between permissible and proscribed speech. These borderline examples help clarify where the margins of free-speech defence should be drawn.
Prohibited hate speech consists of threatening, abusive or insulting expressions of racial hatred on the grounds of colour, race, nationality or ethnic origin. The Boycott, Divest and Sanction group (BDS), established in 2005, advocates a boycott of Israeli products in protest against the illegal occupation of the Palestinian territories. In 2015, the Conservative Canadian government of Stephen Harper announced its intention to criminalise the boycotting of Israel as a ‘hate crime’ and described the boycott movement as ‘the new face of anti-Semitism’. Both ideas are plainly wrong. Anti-Semitism involves hostility or prejudice against Jews, while the BDS boycott is a legitimate expression of opposition to Israeli government policy. Middle East correspondent Robert Fisk, in characteristically forthright language, described the Canadian plan as ‘stupid and counterproductive’ and argued persuasively that boycotting a state to protest crimes is a ‘non-violent but potentially powerful way to express moral outrage’ when all diplomatic statements and efforts have failed.
Another example of speech at the boundaries involves whistle-blowers. Two recent cases, which sharply divided international opinion, involve American intelligence analysts who found themselves outside the scope of free speech protection. Chelsea Manning, an army intelligence analyst, leaked classified military information, including video footage of American helicopters firing on civilians during the Iraq war, and was sentenced to 35 years in a maximum-security facility. Edward Snowden, a former US National Security Agency (NSA) analyst, disclosed classified documents to Guardian journalists, revealing the extent of the NSA’s mass surveillance programme. Both whistle-blowers’ intentions to alert American citizens to their government’s illegal actions in Iraq, and excessive surveillance at home, were overshadowed by considerations of national security.
Mill and many others believe that those who point out mistakes and misbehaviour on vital points of interest, often at great risk to themselves, undertake an invaluable service to mankind. Snowden’s vindication came two years after the leak, when the US Congress passed a Freedom Act to increase security oversight and curb powers to ‘harvest bulk data’ on US citizens, yet Snowden still faces charges at home punishable by up to 30 years in prison.
A final example of marginal speech is that of ‘trolling’ on social media. Convictions under the Communications Act, 2003 and the Malicious Communications Act, 1988 for transmitting grossly offensive, indecent, obscene or menacing messages, have multiplied almost ten-fold in as many years. Concerning what are often fierce exchanges among tweeters and bloggers, former Director of Public Prosecutions, Keir Starmer, reiterated that offensive material must pass a ‘high threshold’ to warrant conviction in order to avoid ‘chilling’ free speech.
Mill points out that ‘no two ages and scarcely any two countries’ have decided alike questions as to where the limits of expression should be drawn. Some countries protect speech that mocks and insults religion while others enact blasphemy laws that carry the death penalty.
The degree of protection of free speech varies considerably between countries, but even the most censorious are keen to claim the mantle of liberalism. Turkey is ranked 149th out of 180 countries in the World Press Freedom Index. As well as rounding up and arresting critical journalists and blocking and threatening to ‘eradicate Twitter,’ President Recep Tayyip Erdogan also proudly claimed: ‘Nowhere in the world is the press freer than it is in Turkey.” Irony was also inescapable when, in January 2015, the Saudi ambassador to France marched in Paris to express solidarity with Charlie Hebdo journalists murdered for insulting Islam, just days after Saudi blogger Raif Badawi received the first of 1,000 lashes for insulting Islam by calling for greater freedoms in Saudi politics and religion.
Even within ostensibly liberal European countries, attitudes are inconsistent towards similar types of expression: at least nine European countries have enacted laws against Holocaust denial but newspapers in all nine countries chose to re-print cartoons depicting the Prophet Mohammed, first published in 2005 by the Danish newspaper Jyllands-Posten, which were profoundly offensive to Muslims. Interestingly, the state of free speech in Britain seemed less conflicted: English law does not explicitly prohibit Holocaust denial, nor were the offending cartoons reproduced in any British newspaper.
Further evidence that international approaches to free speech do not conform to a single standard is that the European Court of Human Rights recognises differences in the cultures, customs, legal traditions and national security requirements of member states and national courts are granted a degree of discretion, or ‘margin of appreciation’, when balancing free expression against competing domestic interests.
What Manner of Defence?
Rights to free expression and protections from harmful speech are enshrined in international human rights legislation, and although free speech rights do not necessarily trump all other rights and interests, they must be taken into consideration when they clash with other important social goods. Extending positive speech rights to provide a more equal public platform for political speech, for example, or to extend access to information, would entail more regulation, which is a blunt instrument for such delicate tasks. The government should refrain from wielding such a blunt instrument to control which types of speech may be heard inside university student unions, or to censor television programming prior to transmission, and instead take reforming steps, for example, to redress the imbalance towards plaintiffs in libel cases so that Science itself may speak freely and to undo England’s reputation as the libel capital of the Western world.
Different examples of speech near the margins of permissibility illustrate that the appropriate boundaries of expression are ‘fuzzy’ at best. Different countries and cultures strike a very different balance between free expression and competing interests, which include national security, public safety and the protection of minority groups. This might explain why misguided attempts to impose Western conceptions of democracy and human rights backfired spectacularly on neoconservative advocates in George W. Bush’s administration. It might never be possible to draw up a single, comprehensive justifying principle for free speech or to define boundaries that could be universally applicable. The best test of whether certain instances of expression should be defended may have to take into account all the circumstances.
Nevertheless, certain principles are clear and may provide guidance, even across international boundaries. The state should defend at least as much speech as is necessary to advance the search for truth, support democracy, deter government abuse and safeguard other rights and freedoms. More importantly, the state ought only to lay down such speech-restrictive measures as are proportionate and strictly necessary to prevent harm and to maintain society’s interests in national security, public safety and private rights, and only then after carefully balancing these against our precious and hard-won freedoms.
© 2015 wonks.co.uk
Cato’s Letter (1720), No.15, ‘Of Freedom of Speech’, online at: http://classicliberal.tripod.com/cato/letter015.html (6 June 2015)
Hargreaves, Robert (2002), The First Freedom: A History of Free Speech (Sutton Publishing Ltd)
Haworth, Alan (1998) Free Speech (Routledge)
Jones, Owen (2014) The Establishment (Penguin Books)
McNamara, Robert S. (1996), In Retrospect: the Tragedy and Lessons of Vietnam (Vintage Books)
Mill, John Stuart (1985) On Liberty (Penguin Classics), first published 1859
Scanlon, Thomas (2003) The Difficulty of Tolerance (Cambridge University Press)
Schauer, Frederick (1982) Free Speech: A Philosophical Enquiry (Cambridge University Press)
Warburton, Nigel (2009) Free Speech: a very short introduction (Oxford University Press)
Articles and Unpublished Materials
Austin, C (2011) ‘Should English Law Protect Holocaust Denial?’, LLM Thesis
Commonwealth Secretariat (2003) Freedom of Expression, Association and Assembly
Fisk, Robert (2015) ‘Canada’s plan to make boycotting Israel a “hate crime” is stupid and counterproductive’, The Independent, 17 May 2015, online at: http://www.independent.co.uk/voices/comment/robert-fisk-canadas-support-of-israel-is-dangerous-10256597.html (11 June 2015)
Greenawalt, Kent ‘Free Speech Justifications,’ Columbia Law Review, 89(1) 119-155
Jenkins, Simon, ‘America curbs state snooping, Britain gives the green light,’ The Guardian, 3 June 2015, online at: http://www.theguardian.com/commentisfree/2015/jun/03/america-freedom-act-britain-state-snoopers (9 June 2015)
Scanlon, Thomas (1972) ‘A Theory of Freedom of Expression’, Philosophy and Public Affairs, 1(2) 204-226
Scanlon, Thomas (1978) ‘Freedom of Expression and Categories of Expression’, 40 U.Pitt.Lr.Rev. 519-550
Stone, Jon ‘The beginning of the end? Turkish president Erdogan’s worst moments,’ The Independent, 8 June 2015, online at: http://www.independent.co.uk/news/world/europe/the-beginning-of-the-end-turkish-president-erdogans-worst-moments-10304375.html?origin=internalSearch (8 June 2015)
Swinford, Steven, ‘Drunk Twitter users unlikely to face prosecution,’ The Telegraph, 19 Dec 2012, online at: http://www.telegraph.co.uk/technology/twitter/9754007/Drunk-Twitter-users-unlikely-to-face-criminal-prosecution.html (9 June 2015)
Travis, Alan ‘Theresa May’s plan to censor TV shows condemned by Tory cabinet colleague,’ The Guardian, 21 May 2015, online at: http://www.theguardian.com/world/2015/may/21/mays-plan-to-censor-tv-programmes-condemned-by-tory-cabinet-colleague (8 June 2015)
‘What do you Know? Citizens are not as well-informed as they think.’ The Economist, 20 April 2011, online at: http://www.economist.com/node/18563612 (8 June 2015)
‘Five Internet tolls a day convicted in UK,’ The Telegraph, 24 May 2015, online at: http://www.telegraph.co.uk/news/uknews/law-and-order/11627180/Five-internet-trolls-a-day-convicted-in-UK-as-figures-show-ten-fold-increase.html (9 June 2015)
‘Victim of Hypocrites,’ The Economist, 24 January 2014, online at: http://www.economist.com/node/21640325 (11 June 2015)
Abrams v United States 250 US 616 (1919)
American Communications Association v Douds 339 US 382 (1950)
Dennis v US 341 US 494 (1951)
Derbyshire County Council v Times Newspapers Ltd (1993) AC 534
Handyside v United Kingdom, 7 December 1976, 1 EHRR 737, European Court of Human Rights
Hustler Magazine v Falwell 485 US 46 (1988)
 Cato’s Letter, No.15
 Handyside v UK, §49
 Schauer (1982) Free Speech, 131
 Scanlon (1972) ‘A Theory of Free Expression’, 204
 Abrams v US (1919) 630-31
 Haworth (1998) Free Speech, 3
 Mill (1985) On Liberty, 76
 Mill, 78
 Mill, 116
 Mill, 80-81
 Mill, 116
 Greenawalt (1980) ‘Free Speech Justifications,’ 134
 Jones (2014) The Establishment, 123
 Jones, 90
 Jones, 96, 123
 Jones, 90
 Warburton (2009) Free Speech: a very short introduction, 3-4
 Handyside v UK §49
 ‘What do you know?’, The Economist, 20.4.11
 Scanlon (1978) ‘Freedom of Expression,’ 545
 Schauer, 157
 Derbyshire CC v Times Newspapers (1993)
 Mill, 98
 Schauer, 27
 Warburton, 34
 Hustler v Falwell (1988) 52
 Jackson J in American Comms v Douds, 442
 McNamara (1996) In Retrospect, 33
 Hargreaves, 156-57
 Theresa May’s plan to censor TV shows,’ The Guardian, 21.5.2015
 Commonwealth Secretariat (2003) Freedom of Expression
 ‘Theresa May’s plan to censor TV shows,’ The Guardian
 Mill, 80
 Handyside v UK §49
 Art.19, Universal Declaration of Human Rights (1949)
 Warburton, 3
 Scanlon, 8
 Scanlon, 522
 Handyside v UK §49
 S.18, Public Order Act 1986
 ‘Canada’s plan to make boycotting Israel a ‘hate crime,’ The Independent, 17.5.2015
 Mill, 88
 ‘America curbs state snooping,’ The Guardian, 3.6.2015
 ‘Drunk Twitter users unlikely to face prosecution,’ The Telegraph, 19.12.2012; ‘Five Internet tolls a day convicted in UK,’ The Telegraph, 24.5.2015
 Mill, 64
 ‘The beginning of the end?’, The Independent, 8.6.2015
 ‘Victim of Hypocrites,’ The Economist, 24.1.2015
 Austria, Belgium, Czech Republic, France, Germany, Lithuania, Poland, Slovakia and Switzerland.
 Handyside v UK