Freedom of Speech and Its Limits

For decades, Western colonial nation-states have touted freedom of speech and freedom of expression as nearly absolute rights. When anti-Muslim offensive cartoons were published in Western tabloids, and Muslims reacted by labeling them as forms of hate and politicized speech, Western governments consistently dismissed these concerns. They argued that freedom of expression supersedes all other rights, including the need for protective limits against hate speech. However, the landscape has dramatically shifted since the onset of the war in Gaza in October 2023. As student protests erupted, condemning the atrocities of the conflict—particularly the disproportionate impact on children and women—Western governments began to take aggressive actions to limit, and even criminalize, anti-war dissent under the pretext of combating antisemitism.

This reaction raises serious questions about the integrity of the very freedoms that have long been championed. The Trump administration, for example, moved swiftly to deport students who held valid immigration status solely for participating in protests. It also threatened universities with the withdrawal of federal funding unless they silenced student activists. Such tactics not only undermine the principles of free speech but also set a dangerous precedent where dissent is equated with disloyalty or hatred.

In this context, it is crucial to scrutinize the legal and political frameworks governing freedom of speech, both in the United States and in international law. The erosion of these rights under the guise of national security or social cohesion poses a significant threat to democratic values. When governments can suppress dissenting voices by labeling them as harmful, they stifle vital discourse and diminish the public’s ability to engage in critical conversations about pressing issues. The implications of this trend extend beyond individual rights; they threaten the very fabric of democratic societies, where the exchange of ideas—even those that may be uncomfortable or controversial—is essential for progress and accountability.

Thus, defending freedom of speech is not merely an abstract principle; it is a necessity for ensuring that diverse perspectives are heard and that societies remain open and resilient. As we witness these rights being undermined, it becomes imperative to advocate for their protection and to hold governments accountable for actions that threaten to silence dissent and curtail expression.

The First Amendment of the U.S. Constitution explicitly protects freedom of speech. It 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.”

Interpreting this constitutional provision, courts and legal scholars have further clarified and established that:

1. the First Amendment only restricts government actions, not private companies or individuals,
2. while it strongly protects speech, there are exceptions,
3.  it protects spoken words, written content, symbolic speech, and expressive conduct,
4. originally, it restricted only Congress, but the 14th Amendment extended it to state and local governments through the doctrine of incorporation.
5. laws restricting speech based on content (e.g., banning political speech) are heavily scrutinized, while content-neutral laws (e.g., noise ordinances) are more permissible,

6. speech can be regulated in how, when, and where it occurs (e.g., restricting protests in residential areas at night) as long as it is applied fairly and not based on content, and
7. not all speech is protected; the government can restrict speech when it such speech is deemed:
8. Incitement to Imminent Lawless Action: Speech that is intended and likely to incite immediate illegal acts.

Example: Encouraging a crowd to riot by saying, “Go burn that building down now!”

1. True Threats – Statements meant to instill fear of bodily harm or death.

Example: Sending a letter saying, “I’m going to kill you tomorrow.”

1. Obscenity – Speech that meets the Miller test, meaning it appeals to prurient interest, is patently offensive, and lacks serious value (literary, artistic, political, or scientific).

Example: Hard-core pornography that lacks artistic or literary merit.

1. Child Pornography – Any sexually explicit content involving minors, regardless of artistic value.

Example: Possessing or distributing images of exploited children.

1. Defamation (Libel and Slander) – False statements that damage someone’s reputation.

Example: Publishing a knowingly false article that falsely claims someone committed a crime.

1. Fighting Words – Words that are likely to provoke immediate violence.

Example: Walking up to someone and shouting a racial slur to provoke a fight.

1. Commercial Speech that is False or Misleading – Advertisements that contain outright lies or deceptive claims.

Example: A company falsely claiming its product cures cancer without evidence.

1. Speech Integral to Criminal Conduct – Speech used to commit a crime, such as blackmail, perjury, or conspiracy.

Example: Paying someone to commit a murder (solicitation of a crime).

1. If the government wants to restrict speech based on content, it must prove:

1. • A compelling government interest (e.g., national security),
   • The restriction is narrowly tailored to serve that interest, and
   • There are no less restrictive alternatives.

Freedom of speech is considered both a universal right and a civil right, but in different contexts:

1. Universal Right (Human Right): Freedom of speech is recognized as a fundamental human right under international law.
   • Freedom of speech is enshrined in Article 19 of the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR).
   • It applies to all people, regardless of nationality, and is meant to protect free expression globally.
2. Civil Right (legal protection within a country): In the U.S., freedom of speech is a civil right because it is legally protected by the First Amendment of the U.S. Constitution.
   • Civil rights are specific to a country’s laws and protect individuals from government infringement.

In practice, freedom of speech varies worldwide—some governments restrict it despite international recognition as a human right. In the United States, freedom of speech is, in theory, equally protected for all—regardless of power, status, or influence. In practice, however, those in power or with resources often enjoy an unfair advantage: not only in defending their own rights to speech and expression, but also in suppressing, diluting, or outright denying those same rights to marginalized groups.

Consequently, some argue that greater protection should be given to the less powerful to ensure that their voices are not drowned out by those with more influence. The rise of corporate social media and advances in technology with algorithms that can manipulate the flow of information, more voices are emerging calling for changes to freedom of expression to enable ordinary people to express themselves. The arguments for such change stems from key facts including,

1. Wealthy individuals, corporations, and media outlets have more access to platforms, which can overshadow marginalized voices;
2. Groups that have been historically silenced (e.g., the poor, minorities, workers, activists) may need additional protections to ensure their speech is heard; and
3. A truly free and democratic society requires not just speech protections but also real access to communication platforms for all.

The voices calling for change and more equitable protection of free speech advanced practical solutions including:

• Anti-SLAPP Laws designed to prevent powerful entities from using lawsuits to silence critics,
• Net Neutrality & Media Regulation aimed at ensuring that all voices have fair access to digital and media platforms, and
• Affirmative Free Speech Protections, which involves policies that actively support marginalized voices (e.g., public funding for independent journalism).

Freedom of speech and expression is a fundamental right upon which the assertion of other rights depends. One cannot secure basic rights, such as the right to food or shelter, without the ability to publicly express the need for them. No other right can be effectively articulated if the medium of expression is denied or severely restricted. Importantly, freedom of speech and expression is not a luxury to be granted only to those who can afford it; it is a core human right that enables individuals to secure other essential needs. Therefore, freedom of speech and expression should be protected and strengthened in ways that ensure not only the right to express oneself, but also the means to do so effectively, so that the fundamental needs enabled by this right are fully realized.