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.

The line about falsely shouting fire in a crowded theatre comes from a 1919 opinion by the American judge Oliver Wendell Holmes, in the case of Schenck v. United States. What is often forgotten is what the case was about. Charles Schenck had distributed leaflets urging men to resist the military draft during the First World War, and the Supreme Court upheld his conviction, using the theatre as an analogy for speech that creates a clear and present danger. By later standards, it was a ruling that punished political dissent.

The American court moved a long way from that position. In Brandenburg v. Ohio in 1969 it held that even advocating force or law-breaking is protected unless it is aimed at producing imminent lawless action and is likely to produce it. So when someone today quotes the crowded theatre to justify banning an opinion, they are borrowing an image from a decision whose reasoning has largely been abandoned. The example still works as a limit case, since a deliberate false alarm causing a stampede is not an exchange of ideas, but it is a poor guide to where the line falls for political speech.

In the United States the right not to be compelled to speak was established through a sharp reversal. In 1940 the Supreme Court ruled that public schools could expel children of Jehovah's Witnesses who refused, on religious grounds, to salute the flag and recite the Pledge of Allegiance. The decision was followed by a wave of attacks on Witnesses across the country, and within two years three of the justices who had joined the majority said publicly that they now thought it wrong. A new case, brought by Witness families in West Virginia, soon came before the court.

In West Virginia State Board of Education v. Barnette, decided in June 1943 in the middle of the Second World War, the court overturned its earlier ruling. Justice Robert Jackson wrote that if the constitution has any fixed star, it is that no official can prescribe what shall be orthodox in politics, nationalism, religion or other matters of opinion, or force citizens to declare their belief in it. The ruling rested on freedom of speech rather than only on religious freedom, so its protection covers anyone who refuses to recite an official creed, whatever their reason for refusing.

Speakers' Corner, at the north-east corner of Hyde Park in London, has become a symbol of free expression. Public meetings and speeches in the park were the subject of conflict with the authorities in the nineteenth century, and the Parks Regulation Act of 1872 confirmed a place for public speaking there. Ever since, people have stood on boxes and ladders to argue about religion, politics and anything else, especially on Sunday mornings.

The rules of the corner are the ordinary law of the land: speakers have no special immunity, and threats, incitement and some abusive speech can still lead to arrest. Its real significance is cultural, as a place where anyone can speak and anyone can answer back. Heckling is part of the tradition, and many famous campaigners spoke there early in their careers.

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.