Quora: What Does Freedom of Speech Mean?

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Answer from Robert Frost, Instructor and Flight Controller at NASA, free speech advocate:

Freedom of speech is the right of expression without fear of censorship or retaliation. It is not a government granted right; it is a natural right.

In the United States, the First Amendment does not grant the right of free speech. The First Amendment prohibits government from infringing on that natural right that preexisted the Constitution. Freedom of speech is not uniquely American. As a natural right, it transcends petty and temporary things like governments and borders. In 1948, the United Nations expressed their belief that it is a human right, in the Universal Declaration of Human Rights (UDHR):

Article 19

Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers

The Americans, as aforementioned, document their insistence that government has no place infringing on speech, in the First Amendment to the Constitution, which states:

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.

There was a lot of debate about whether or not to include that text in the Bill of Rights. The debate wasn't about whether freedom of speech was a right, it was about whether or not the Constitution needed to document something that was so fundamentally obviously a natural right. The winning argument was that governments could not be trusted to do the obviously right thing, so we'd better write it down.

At the same time that the Bill of Rights was being debated, the French were redefining themselves, post revolution, and publishing their Declaration of the Rights of Man and of the Citizen. On the subject of freedom of speech, it says:

Article XI – The free communication of thoughts and of opinions is one of the most precious rights of man: any citizen thus may speak, write, print freely, except to respond to the abuse of this liberty, in the cases determined by the law.

The Canadian Charter of Rights and Freedoms enshrines freedom of speech protection in their Constitution:

2. Everyone has the following fundamental freedoms:

(a) freedom of conscience and religion;

(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;

(c) freedom of peaceful assembly; and

(d) freedom of association.

I could go on and on. Freedom of speech is explicitly called out in the defining documents of many nations. And in almost all of those statements, the wording is clear in that the government doesn't provide freedom of speech, the government is prohibited from interfering with freedom of speech. The right preexists the government.

I harp on this point because it is necessary to understand the fundamental mistake that is made every time this question arises. In every case, someone, usually an American, will want to make the fallacious point that freedom of speech equates with the First Amendment and thus only refers to the prohibition of government interference. That is poppycock.

All of these groups of people: the Americans, the Canadians, the French, the Japanese, and the world as a whole via the United Nations, ensure that their governments are legally prohibited from interfering in free expression because they have a cultural value that each of us must be free to express ourselves. We believe that our societies are better off when there is a free exchange of ideas. Yes, there are inherently bad ideas, but we must not police expression of ideas because the risk of good ideas being stifled is too high. James Madison, author of the First Amendment wrote:

"Some degree of abuse is inseparable from the proper use of every thing, and in no instance is this more true than in that of the press. It has accordingly been decided by the practice of the States, that it is better to leave a few of its noxious branches to their luxuriant growth, than, by pruning them away, to injure the vigour of those yielding the proper fruits. And can the wisdom of this policy be doubted by any who reflect that to the press alone, chequered as it is with abuses, the world is indebted for all the triumphs which have been gained by reason and humanity over error and oppression; who reflect that to the same beneficent source the United States owe much of the lights which conducted them to the ranks of a free and independent nation, and which have improved their political system into a shape so auspicious to their happiness?"

Because it is the people that have this value, the respect for this natural right must also extend to the people. We cannot expect the freedom to express ourselves if we would ever deign to infringe on the right of others to express themselves. We do not have to like the ideas of others. We do not have to listen to the ideas of others. We do not have to support the ideas of others. But if we do not tolerate the expression of ideas by others, we do not respect the natural right of freedom of speech, and do not deserve it for ourselves.

In his 1954 Essays on Education, Alfred Whitney Griswold wrote:

Books won't stay banned. They won't burn. Ideas won't go to jail. In the long run of history, the censor and the inquisitor have always lost. The only sure weapon against bad ideas is better ideas. The source of better ideas is wisdom. The surest path to wisdom is a liberal education.

Twenty-seven years earlier, Supreme Court Justice Louis Brandeis, in his opinion for Whitney v. California, wrote some very similar words:

"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."

The irony of using that case as a reference is that the verdict of that case did indeed put a restriction on freedom of speech, which gets us to the last part of your question: what is not free speech?

In Whitney v. California, the majority cited an earlier case (Gitlow v. New York 1925) opinion that said:

"That the freedom of speech which is secured by the Constitution does not confer an absolute right to speak, without responsibility, whatever one may choose, or an unrestricted and unbridled license giving immunity for every possible use of language and preventing the punishment of those who abuse this freedom, and that a State in the exercise of its police power may punish those who abuse this freedom by utterances inimical to the public welfare, tending to incite to crime, disturb the public peace, or endanger the foundations of organized government and threaten its overthrow by unlawful means, is not open to question.

by utterances inimical to the public welfare, tending to incite crime, disturb the public peace, or endanger the foundations of organized government and threaten its overthrow."

The Supreme Court has struggled, many times, with defining that invisible and amorphous line between speech that is protected and speech that is prohibited. They've examined questions such as whether all speech is expression of ideas. Freedom of speech is not the right to utilize one's larynx. Freedom of speech is the right to express ideas. Is one expressing an idea when one yells "Fire!" In a crowded theater? Is the person that yells "Fire!" In that theater punished for their speech or for the parallel act of inciting a dangerous situation?

In Abrams v. United States 1919, Holmes and Brandeis gave the "clear and present danger" argument:

"I do not doubt for a moment that, by the same reasoning that would justify punishing persuasion to murder, the United States constitutionally may punish speech that produces or is intended to produce a clear and imminent danger that it will bring about forthwith certain substantive evils that the United States constitutionally may seek to prevent."

But there are restrictions on other types of speech, too. Not all are clear and imminent danger. Here are answers that detail the examples of cigarette advertising and obscene content:

Robert Frost's answer to Is a ban on smoking advertisement a restriction of free speech?

Robert Frost's answer to When and how was the first amendment adjusted to allow for more sexualization of women on network American TV?

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Quora: What Does Freedom of Speech Mean? | Opinion