Free Speech as the Right to Say No

Free speech is a regulative ideal powered by the right to dissent

1 Limitations on Speech

What exactly is free speech? Clearly, it can’t just mean saying anything you want to say without any restriction whatsoever. Yes, freedom of thought and expression constitutes a prime value in democratic government and is enshrined in our First Amendment. Yet allowable speech has its limits. In many cases, the First Amendment’s guarantee of free speech provides no protection. Much speech is in fact liable to criminal and civil penalties, and rightly so. Consider the following areas where you can’t just express what you want to express, whether voiced, written, or imaged:

1. Defamation (Libel and Slander)
   Defamation is making false statements about people that damage their reputation. Libel refers to written defamation, while slander is spoken. Both can lead to civil penalties, as the law protects individuals from untrue statements that harm their employability, public image, or personal life.

2. Perjury
   Perjury is the act of lying under oath in a court or legal proceeding. This is a criminal offense because it obstructs justice by providing false testimony, which can influence legal outcomes.

3. Obscenity
   Speech that is deemed obscene—such as certain sexually explicit material that lacks literary, artistic, political, or scientific value—can be restricted. Obscenity laws vary but typically protect community standards and prevent harm from excessively explicit content.

4. Incitement to Violence
   Encouraging or inciting others to commit violent acts is not protected speech. Speech that is likely to provoke imminent lawless action, such as riots or attacks, can be prosecuted to prevent harm and maintain public safety.

5. Threats
   Credible threats, which are serious expressions of intent to harm another person, are illegal. This includes verbal, written, or electronic threats that cause fear of bodily harm and compromise personal security.

6. Fraud
   Fraudulent speech—such as lying to obtain money, property, or services—is punishable. Fraud undermines trust and leads to material harm, and thus laws exist to protect individuals and organizations from deception.

7. Copyright Infringement
   Speech that violates intellectual property rights, such as plagiarism or unauthorized copying of creative works, is illegal. Copyright laws protect creators' rights to control the use and distribution of their original works.

8. Invasion of Privacy
   Violating someone’s privacy, such as disclosing personal or sensitive information without consent, can lead to civil or criminal penalties. Privacy laws protect individuals from unauthorized exposure or exploitation of private details.

9. Commercial Speech and False Advertising
   Commercial speech, including advertising, is limited when it involves false or misleading claims. False advertising laws protect consumers from deceptive practices and promote fair competition.

10. Harassment
    Repeated unwanted invasive speech or behavior that targets an individual, causing distress, is illegal under harassment laws. This includes verbal harassment that creates a hostile environment, often regulated in workplaces or schools.

11. Urging Self-Harm
    Urging people to harm themselves—especially those who are emotionally fragile, mentally ill, or otherwise vulnerable—has been successfully prosecuted. Michelle Carter, for instance, was convicted of involuntary manslaughter for convincing Conrad Roy via text messages to kill himself.

12. Sedition
    Speech aimed at overthrowing the government or inciting rebellion can be considered seditious and is punishable. Sedition laws protect national security by preventing speech that may lead to insurrection.

13. Blackmail and Extortion
    Using threats of harm or disclosure to coerce someone into giving up money, services, or property is illegal. Blackmail and extortion laws protect individuals from speech that manipulates through threats.

14. Solicitation to Commit Crimes
    Encouraging or requesting someone to commit a crime is not protected. Solicitation laws target speech that actively attempts to involve others in criminal activities.

15. Contempt of Court
    Disobeying court orders or disrupting judicial proceedings with disrespectful or obstructive speech can lead to contempt charges. These laws ensure the integrity and orderly functioning of the justice system.

16. Revenge Porn
    Sharing intimate images or videos of someone without their consent, often to humiliate them, is illegal in many places. Revenge porn laws protect individuals from this form of abusive, non-consensual disclosure.

17. Disruptive Speech in Schools
    Students’ free speech can be limited if it disrupts the educational process. Schools have the authority to regulate speech that causes substantial interference with school operations or infringes on others’ rights.

18. Military Secrets and National Security Leaks
    Disclosing classified information or military secrets endangers national security. Laws such as the Espionage Act penalize individuals who share sensitive information that could compromise national interests.

19. Child Pornography
    The creation, possession, or distribution of child pornography is universally illegal. This type of speech is strictly regulated to protect minors from exploitation and abuse.

20. Professional Confidentiality Violations
    Speech that violates confidentiality agreements, such as attorney-client privilege or doctor-patient confidentiality, is restricted. These laws protect privacy and ensure trust in professional relationships.

I recite this long list of limitations on speech and expression to indicate that whatever our First Amendment means by free speech, speech invariably operates within certain guardrails. And so it must. As the New Testament writer James remarks about the power of the tongue (speech), it can’t be allowed to operate completely unchecked:

The tongue is a small part of the body, but it makes great boasts. Consider what a great forest is set on fire by a small spark. The tongue also is a fire, a world of evil among the parts of the body. It corrupts the whole body, sets the whole course of one’s life on fire, and is itself set on fire by hell. All kinds of animals, birds, reptiles and sea creatures are being tamed and have been tamed by mankind, but no human being can tame the tongue. It is a restless evil, full of deadly poison.

The Old Testament likewise confirms this weighty view of speech: “Life and death are in the power of the tongue.” (Proverbs 18:21)

2 Case Study: The UK Communications Act

Freedom of speech is therefore freedom within certain limitations. These limitations balance freedom of speech with other societal values and protections, ensuring that free expression does not infringe on others’ rights or safety. Nonetheless, given so many restrictions and counterbalancing considerations regarding speech, the question remains what is gained by putting the adjective “free” in front of the noun “speech.” Is free speech even a coherent concept? I’m going to argue that it is. To set the stage, let’s examine a law that would clearly violate the First Amendment’s prohibition against abridging freedom of speech. For reference, here is the 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.

In relation to our First Amendment, consider the UK Communications Act of 2003, Section 127, which is currently being used to arrest and imprison people for social media “violations” (the scare quotes are there because the violations are so murky and ill-defined). This has included one mother, Kate Scottow, who was arrested in front of her young children for misgendering a transwoman on Twitter. The conviction was quashed on appeal, but others in the UK have not been so lucky.

Here is how this section of the communications act reads (subsequent revisions in 2015 and 2024 have made the act even more stringent):

(1) A person is guilty of an offence if he—

• (a) sends by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character; or

• (b) causes any such message or matter to be so sent.

(2) A person is guilty of an offence if, for the purpose of causing annoyance, inconvenience or needless anxiety to another, he—

• (a) sends by means of a public electronic communications network, a message that he knows to be false,

• (b ) causes such a message to be sent; or

• (c) persistently makes use of a public electronic communications network.

(3) A person guilty of an offence under this section shall be liable, on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding level 5 on the standard scale, or to both.

(4) Subsections (1) and (2) do not apply to anything done in the course of providing a programme service (within the meaning of the Broadcasting Act 1990 (c. 42)).

Given the First Amendment’s restriction on the US Congress against making any law that abridges free speech, it’s hard to see how this section of the UK Communications Act could legitimately be made into law in the US or be deemed as constitutional in a case before the US Supreme Court (barring, of course, that the First Amendment is rescinded, which some US politicians are taking seriously—more on this below). Consider the phrase “causing annoyance, inconvenience or needless anxiety.” How fluid is this? Someone who really doesn’t like what you say (and you for that matter) could readily invoke annoyance, inconvenience, and needless anxiety if doing so would enlist government force to silence you.

The harms associated with annoyance, inconvenience, etc. are so vague that they can be used to silence anyone. The language of the UK Communications Act is also a double-edged sword. Right now trans people are the oppressed group that can claim annoyance, inconvenience, etc. But what happens when people’s sensibilities shift to where biological males or females who identify with the opposite sex become viewed as annoyances by so-called straight people for proclaiming themselves to be “trans”? Will they then be liable to the same penalties as Kate Scattow? Will they need to keep silent about their trans-womanhood or trans-manhood?

A cardinal difficulty with the UK Communications Act is that it invites the government to take sides not on matters of real harm but on matters where people will naturally disagree. Annoyance, for instance, tends to be a two-way street: by charging me with annoying you, you will in turn be annoying me. So whose sense of annoyance does the government validate, and whose sense of annoyance does it invalidate? And how does the government settle the underlying point of controversy?

In the case of Kate Scattow, how did the government decide that affirming the transgender preference for changing pronouns when someone transitions is valid, but that affirming the traditional preference for using pronouns based on biological sex at birth is invalid? Governments have no special expertise in settling deeply ingrained differences in a society. Accordingly, which side of a controversy the government decides to support will at best be arbitrary, at worst ideological, and invariably in violation of someone’s civil rights.

3 Freedom as an End

Supporters of free speech often invoke a dictum attributed to Voltaire (but actually due to his biographer Evelyn Beatrice Hall): “I disapprove of what you say, but I will defend to the death your right to say it.” The National Socialist Party of America (a neo-Nazi group) planned in 1977 to march on predominantly Jewish Skokie (a suburb of Chicago). At the time, I lived only a few miles away. The ACLU defended the First Amendment right of neo-Nazis to march on Skokie in a case that went to US Supreme Court, which found in favor of the neo-Nazis. These neo-Nazis, in the words of Section 127 of the UK Communications Act, were as indecent, obscene, menacing, annoying, inconvenient, and anxiety producing as one could imagine (Skokie at the time included many holocaust victims). And yet the First Amendment protected the neo-Nazis. They would have had no such protection in the UK.

Was it worth protecting these neo-Nazis in the name of the First Amendment? It all depends on what you regard as of ultimate value for human well-being. Is the ultimate value, as globalists assume, to ensure compliance from a cowed populace that will go along with whatever the global elite think is best for the globe—a global elite that is increasingly Malthusian, seeing humans as a parasite on the planet and as needing to be thinned out and rigorously controlled? These global elites have only contempt for the unwashed masses and think it their right to rule us without our consent (anyone who listens in on the World Economic Forum will instantly recognize what I’m talking about here).

The conception of human well-being that underlies the First Amendment is very different. It doesn’t see free speech as an instrumental good to some other end, which can then be restricted if that other end is not met. It sees freedom as an end in itself. In the language of progressivism, it sees freedom as the ultimate progress. It’s therefore ironic to see some of the biggest opponents of free speech regarding America’s history of slavery as the ultimate profanation. They don’t seem to grasp that assaults on freedom of thought and expression derive from an impulse to enslave. The impulse to freedom moves in the opposite direction, wanting to expand and universalize freedom as much as possible, and that includes freedom of thought and expression. As Bernard Malamud put it poignantly in his novel The Fixer, “the purpose of freedom is to create it for others.”

Why should freedom be the ultimate value? Freedom is about expanding the range of possibilities and being able to choose among them. The assault on freedom, on the other hand, is about constricting possibilities, reducing them artificially so that people are not free to choose and don’t even know what their choices are. Creativity presupposes freedom, expanding what’s possible and then bringing to life previously undreamt possibilities. Freedom of thought and expression lies at the heart of such creative freedom. Without it, societies stagnate. And by artificially restricting it, governments become tyrannical.

4 John Kerry and Hillary Clinton: Putting Free Speech in Stark Relief

Forces exist in the US that want to jettison the First Amendment so that something like Section 127 of the UK Communications Act could become law in the US. Consider the following laments by John Kerry and Hillary Clinton about the First Amendment being an obstacle to controlling and eliminating disinformation (include here also misinformation and malinformation—all of these are information that those in power don’t like; truth and evidence here take the hindmost):

What’s remarkable about such attacks on free speech is that those like Kerry and Clinton are invariably oblivious that they might themselves be guilty of disinformation when they level that charge against others and thereby try to suppress free speech. They are so confident that they are right—that they have some sort of God’s eye view of the truth. They see themselves as so infallibly qualified to judge what constitutes disinformation that they never think that they themselves may be guilty of embracing and spreading it.

The charge of disinformation is a double-edged sword. Indeed, the charge of disinformation may itself constitute an act of disinformation. John Stuart Mill, in On Liberty, stressed that free speech must be allowed precisely because of human fallibility—the fact that all of us might be wrong even about things we’re totally convinced we got right. And so, for that reason, we must allow free discussion of opposing viewpoints. Kerry and Clinton betray no such self-awareness. They need to take a deep breath and ask what puts them in a position to judge what constitutes disinformation?

Consider the case of Stanford’s Jay Bhattacharya, Oxford’s Sunetra Gupta, and Harvard’s Martin Kulldorff, who in October 2020 authored the Great Barrington Declaration. The authors argued for a targeted protective approach to COVID-19 rather than widespread lockdowns. They advocated shielding the most vulnerable populations—such as the elderly and those with underlying health conditions—while allowing younger, healthier people to continue their lives with fewer restrictions, thereby building herd immunity without massively disrupting society.

At the time of its release, the declaration faced significant opposition—including censorship—from the mainstream public health community, with critics arguing it was unethical, overly simplistic, and, if its recommendations were implemented, likely to overwhelm healthcare systems. Many public health officials and media outlets dismissed it as dangerous or anti-scientific. In the absence of free speech protections, the authors might well have been considered as purveyors of disinformation and worthy of criminal and civil penalties.

And yet the authors of the Great Barrington Declaration were ultimately vindicated. The so-called experts who wanted to silence them (such as NIH head Francis Collins) were proven wrong. Over time, as the social, economic, and mental health impacts of prolonged lockdowns became apparent, and as studies showed that the virus could not be contained, the approach outlined in the Great Barrington Declaration came to be seen as the call for balancing between pandemic mitigation and societal well-being.

Freedom of speech as described in the First Amendment isn’t for speech that people like, in which case the question of free speech would not even arise. It is for speech that people don’t like, nay, that they despise and abominate. As Jonathan Turley shows throughout his recent book on free speech, The Indispensable Right: Free Speech in an Age of Rage, throughout US history, free speech has come under fire from our government, going right back to the administration of our second president, John Adams (1797–1801).

Free speech can get in the way of government leaders exercising their will and agenda. It’s thus easy to convince oneself that one’s need to govern effectively requires putting limitations on free speech. Such rationalizations, however, as Turley convincingly shows always end up being counterproductive. Killing free speech always ends up also killing the things we would like to keep—those inalienable rights identified by Jefferson in the Declaration of Independence, which is to say life, liberty, and the pursuit of happiness.

In discussions about free speech, it is common to distinguish speech from action. Thus protections may rightly keep speech free but actions less so. Yet this is an artificial distinction. It takes action to articulate words in speech or to write them down on paper or to form images (such as memes). Moreover, words can by their very utterance, and without additional action, create new realities. Philosopher J.L. Austin’s theory of performative utterances, for instance, identifies speech acts that in their very expression create new realities. “I now pronounce you man and wife” creates a marriage. “I deem this to be legal tender,” when uttered by a government, creates money. “You’re fired,” uttered by a boss, creates one fewer employee. It’s thus appropriate to think of speech as a type of action rather than something opposite to action.

5 Marcuse’s Shadow

The assault on free speech that we in America deal with most these days comes from the Left or Progressives. They justify limitations on free speech as protecting oppressed groups from victimization by oppressor groups. But who’s to say who is oppressed and who is the oppressor? Sometimes this is clear. But sometimes those claiming to be oppressed, by their very belligerency in claiming that status, end up oppressing others. White supremacy is widely advertised by the Left as an oppressive force. But white males increasingly feel that by being tagged as white supremacists simply in virtue of their gender and race, they themselves are now becoming an oppressed group.

Critical theorist Herbert Marcuse (1898–1979) clearly articulated the rationale that the Left uses to this day for undercutting free speech. In his 1965 essay “Repressive Tolerance,” Marcuse argues that the concept of tolerance, as traditionally understood in liberal democracies, can become a tool of repression rather than liberation. He contends that indiscriminate tolerance of all viewpoints (such as implied in the Constitution’s First Amendment) will include those that are oppressive or harmful, and thus allow for the perpetuation of social injustices. By permitting intolerant ideologies to flourish, society effectively enables the repression of marginalized and vulnerable groups. Marcuse asserts that true tolerance should not simply involve the passive acceptance of all opinions but should actively promote progress and justice by opposing harmful, reactionary ideologies.

Marcuse further critiques the idea that freedom of speech and expression, as practiced in Western democracies, is neutral. He believes that the dominant groups in society—those in positions of power—are able to manipulate public discourse, controlling media and education to maintain the status quo. In this way, tolerance is used to preserve existing power structures. By tolerating both progressive and regressive ideas equally, society creates a false sense of balance, but in reality this balance favors the powerful, as their ideas and interests already dominate the public sphere.

To redress these faults that he finds with conventional freedom of speech, Marcuse advocates for what he calls “liberating tolerance.” This is a form of tolerance that is biased in favor of progressive ideas and actions aimed at achieving social justice. He argues that tolerance should not extend to ideologies or movements that perpetuate oppression, such as racism, fascism, or extreme conservatism. Instead, tolerance should be granted selectively, supporting voices that promote liberation and equality while silencing those that seek to oppress. This, he argues, is necessary for achieving real freedom and justice in society.

Marcuse’s distinction between repressive and liberating tolerance is rich, and indeed Orwellian. “Repressive tolerance” is tolerance for all views and thus for a traditionally full-throated understanding of freedom of speech. Yet it is repressive, according to Marcuse, because it allows too much, even what can be used to repress. “Liberating tolerance,” on the other hand, is tolerance for views acceptable to the Left, described in terms of liberation and equality, with reactionaries who resist these leftist values therefore being censored and silenced. The inversion inherent in this distinction is Orwellian, making terms mean their opposite. From any common sense point of view, liberating tolerance is in fact repressive and so-called repressive tolerance is, if not liberating, at least a precondition for liberty.

6 Defining Free Speech

So far we’ve been talking around free speech. What then is it, really? Free speech is a regulative ideal undergirded by the fundamental human right to dissent or disagree. In philosophy, a regulative ideal is a concept that guides thought and action. Regulative ideals are aspirational—they are not fully attainable in practice. In Kantian philosophy, for instance, regulative ideals included God, immortality, and freedom. Without these, morality was for Kant impossible. Regulative ideals structure our understanding of the world and motivate moral behavior. They are not empirical realities that can be fully realized, nor can they be precisely specified in terms of logical predicates that identify what’s in and what’s out. Regulative ideals act as guiding principles rather than as achievable endpoints.

As a regulative ideal, freedom of thought and expression is a freedom that we strive to extend as far as practically possible, always erring on the side of freedom. Lame rationalizations about limiting free speech because an elite leadership cannot otherwise effectively govern an unruly citizenry will therefore not wash. Free speech’s only limiting principle is a clear collision with other fundamental moral principles (such as inciting clear and imminent harm). Thus, vague limitations on free speech in terms like those of Section 127 of the UK Communications Act (annoyance, inconvenience, etc.) can have no place in discussions about free speech and certainly not be encapsulated in laws that abridge freedom of speech.

But freedom of speech is not just a regulative ideal. It works together with the fundamental human right to dissent or disagree. Tyranny thrives when everybody thinks and speaks the same thing. But humans are a contentious species that find energy in disagreement. Moreover, there’s no reasonable way to insist that someone else agree with you. You may try using reason and evidence to gain agreement. You may try rewards and punishments (crude carrots and sticks, or more sophisticated technological solutions, such as China’s social credit system). But at the end of the day, everyone has the right express their disagreements publicly.

When someone has publicly stated a claim, that claim becomes fair game for disagreement. This is a simple matter of fairness and justice. If person A says that X is so, then person B has a right to say that not X is so. One of these two individuals may be hopelessly and irretrievably wrong. But once a claim is out there for public discussion, its negation as well as variations of it may be stated and debated. Anything less than that is to assault our fundamental human right to dissent, suppressing who we are and what we regard to be true.

Interestingly, freedom of speech applies less to initial positive statements about something being the case than to subsequent disagreements that challenge these initial statements. Consider the claim that anthropogenic global warming is real and constitutes an existential crisis. When climate scientist first started making this claim, most people didn’t have a dog in the fight one way or another. No one thought that free speech needed to be abridged to confirm or disconfirm the claim.

Yet, once this claim about anthropogenic global warming was out there for discussion, it became legitimate for others to disagree with it. Such disagreement is not mal-, mis-, or dis-information. Any view put out there for public consideration is fair game for public disagreement. And yet it was precisely when others started to disagree with it that free speech was invoked as a bad thing, giving dissenters too much license to challenge the politically authorized global warming narrative. “Climate deniers,” as these dissenters came to be called, were thus deplatformed, shadow banned and otherwise censored and discredited.

I’ve tried in this essay to present the American landscape within which discussions about freedom of speech take place. To sum up, freedom of thought and expression, as a regulative ideal, is a freedom that we should allow to be taken as far as practically possible, limiting it only when there is clear harm or clear collision with other universal moral principles. Moreover, forced compliance does not extend to people’s minds and vocal cords. Humans always have a right to say no and to state publicly their disagreement with anything that is out there being publicly discussed. The suppression of dissent is the mortal enemy of free speech.