What Is Freedom of Speech? What It Protects and Where It Stops

The modern argument begins in seventeenth-century England, when John Milton attacked the licensing of printing in 1644 with the claim that truth would win any fair fight with falsehood, and it was sharpened by the Enlightenment. The First Amendment to the American constitution in 1791 forbade Congress to make any law abridging the freedom of speech or of the press, and the French Declaration of the Rights of Man in 1789 called free communication of thought one of the most precious rights of man. Both were reactions to censorship by kings and churches.

The most influential defence is John Stuart Mill's, in On Liberty in 1859. Mill argued that silencing an opinion robs everyone: if it is true, they lose the truth; if it is false, they lose the clearer understanding that comes from meeting it; and if it is partly true, they lose the part. He allowed one limit, that speech may be stopped when it would cause direct harm to others, and gave the example of telling an angry mob outside a corn dealer's house that corn dealers starve the poor. Most of the law since has been an argument about what counts as that mob.

In its broad modern form, expressed in Article 19 of the Universal Declaration of Human Rights in 1948, the right covers holding opinions, expressing them by any medium, and receiving information and ideas from others. That means it protects more than talking:

• •Political criticism, including of the government, the courts and the head of state
• •Journalism, and the confidentiality of a journalist's sources
• •Art, literature, satire and offensive or shocking ideas, which the European Court has said the right exists specifically to protect
• •Symbolic acts such as wearing a badge, burning a flag or kneeling during an anthem
• •Silence: the right not to be compelled to say something, such as an oath of belief
• •Academic inquiry and the publication of research

No legal system protects all speech. The limits fall into a few families, and the differences between countries are mostly about where within each family the line sits. Incitement to violence is unprotected everywhere, though the United States requires that the violence be imminent and likely, while most of Europe bans incitement to hatred against groups even without a specific threat. Defamation, the publication of false statements that damage a reputation, is a civil wrong almost everywhere and a crime in some places. Obscenity, threats, fraud, perjury, breach of confidence and revealing state secrets are all excluded, as is the classic case of falsely shouting fire in a crowded theatre.

The sharpest divide is over hate speech and denial of atrocities. Germany, Austria, France and others make denying the Holocaust a crime, and most European countries criminalise stirring up hatred on grounds of race or religion; the United States protects both under the First Amendment, on the theory that the government cannot be trusted to decide which ideas are too dangerous to hear. Neither side thinks the other is being unreasonable so much as weighing the same values in the light of a different history.

In its legal form, freedom of speech is a right against the state. A government may not imprison, fine or license people for what they say. It does not bind private parties: an employer may sack an employee for a public statement, a publisher may decline a book, and a social media platform may remove a post, and none of that is censorship in the legal sense, though it may be in the everyday one. The question of whether the largest platforms, which now host much of public debate, should be treated more like the state or more like a newspaper is the current frontier of the argument, and different countries are answering it differently.

The right is also weaker in practice than on paper. Journalists are killed every year for what they publish, and in many countries the law protecting speech coexists with laws on insult, sedition, or public order that swallow it. A useful test of a country's actual freedom of speech is not its constitution but what happens to the person who mocks its leader.

Freedom of speech is the right, primarily against the state, to hold and express opinions and to receive them from others, defended since Milton and Mill on the ground that suppressed ideas cost everyone the chance to test them. It covers political criticism, journalism, art, symbolic acts and silence, and it stops at incitement, defamation, threats, fraud and secrets; where it stops on hatred is the main point on which democracies disagree.