Free speech: Who decides what can be said
An accessible guide to freedom of speech: the three senses of the phrase, what Milton and Mill actually argued, why Marcuse and Popper thought tolerance could be repressive, and how private platforms moved the argument.
In June 1644 John Milton published a pamphlet against the licensing order the English Parliament had passed the year before, and he published it without a licence. 1 Areopagitica attacks the new system — nothing printed until a censor had approved it — as both useless and impious, and it turns on one sentence about how truth behaves:
... so Truth be in the field, we do injuriously, by licensing and prohibiting, to misdoubt her strength. Let her and Falsehood grapple; who ever knew Truth put to the worse, in a free and open encounter? 2
That is a claim about consequences, and it can be checked: leave argument open and the true will beat the false on its own, so the censor's office buys nothing. Milton's own summary is the line the tradition kept repeating:
Give me the liberty to know, to utter, and to argue freely according to conscience, above all liberties. 2
Four centuries of argument about free speech run downstream of that sentence, the case against it included.
Three things the phrase is doing
Freedom of speech is the principle that people should be protected from punishment or silencing for what they communicate. 3 The phrase then does three separate jobs, and most public argument slides between them without noticing.
| Sense | What it names | Where it is anchored |
|---|---|---|
| A legal right | The limits a state accepts on its own power to censor, license or punish expression | First Amendment (1791); UDHR art. 19 (1948); ICCPR art. 19 (1966) 1 |
| A justifying principle | The reasons expression is worth protecting — for the audience, for the speaker, or for democracy | The competing theories surveyed in the SEP 3 |
| A norm about limits | What a society should tolerate, and what it should refuse | Hate-speech law; the paradox of tolerance 4 |
"You can't be arrested for that" is a claim about the legal right. "Open argument is how a society finds the truth" is a claim about the justifying principle. "That shouldn't be allowed" is a claim about the norm. Each can be true or false on its own, and the sharpest division in the philosophy sits inside the first two, because the moral right and the legal right come apart. Even a scholar who holds that hate speech falls outside the moral right to free speech may want the law to protect it anyway, on the ground that giving the state the power to sort protected from unprotected speech is more dangerous than the speech itself. 3
Where the principle came from
Athenian democracy is thought to have practised a form of equal public speech from the late sixth century BC. 1 The modern instruments are far younger. Milton's campaign failed in its own time, and Parliament kept licensing, yet the English press escaped regulation in 1695 when the Licensing Order of 1643 was allowed to lapse. 1 Sweden passed one of the world's first freedom-of-the-press acts in 1766, under the leadership of the priest and parliamentarian Anders Chydenius, who held that subjects cannot know the limits of government unless writing is free. 1 France's Declaration of the Rights of Man and of the Citizen called the free communication of ideas one of "the most precious of the rights of man" in 1789, and the United States ratified the First Amendment in 1791. 1
The international layer came after the Second World War: Article 19 of the Universal Declaration of Human Rights in 1948, and Article 19 of the International Covenant on Civil and Political Rights in 1966, which protects the freedom "to seek, receive and impart information and ideas of all kinds". 1 Article 20 of that same covenant requires states to prohibit "advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence", together with propaganda for war. 3 The two articles sit in one document, and this more restrictive approach prevails in most liberal democracies' treatment of harmful speech. 3
The systematic argument arrived in between them. John Stuart Mill's On Liberty, published in 1859, is where the principle stopped being a plea and became a theory.
The test Mill set
Mill's general principle is stricter than many of his readers expect:
The only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others. 5
Chapter 2 asks why speech in particular deserves protection, and Mill stacks four reasons. People are fallible, so an opinion we are certain is false may be true. An opinion we are right to think false may still hold part of the truth. Where a received opinion is never contested, it is held as a prejudice rather than a reasoned conviction. And a doctrine that nobody is ever called on to defend loses its living meaning. The stakes are stated at their highest in a sentence that later judges borrowed:
If all mankind minus one, were of one opinion, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person, than he, if he had the power, would be justified in silencing mankind. 5
The price of silence is paid by the holders of the true opinion as much as by the speaker, Mill argues, since "if it is not fully, frequently, and fearlessly discussed, it will be held as a dead dogma, not a living truth". 5
Mill then carves his exception. Expression that has become "a positive instigation to some mischievous act" may be punished, and his example has stayed in the literature ever since:
An opinion that corn-dealers are starvers of the poor, or that private property is robbery, ought to be unmolested when simply circulated through the press, but may justly incur punishment when delivered orally to an excited mob assembled before the house of a corn-dealer. 5
Read carefully, that example shows how much harmful speech Mill still protects. The same sentence is harmless in print and punishable in front of a hungry crowd, so what makes it punishable is the absence of time for discussion rather than the falsity of the claim or the offence it gives. The SEP makes the point that chapter 2 is a partial qualification of the harm principle rather than a straightforward application of it, since Mill is granting that much harmful speech nevertheless has to be allowed. 3
The case against pure tolerance
| Position | Its claim | What it answers |
|---|---|---|
| John Stuart Mill (1859) | Suppressing an opinion costs more than it saves, and the line falls where expression has become a positive instigation to harm with no time left for argument. 5 | Why a fallible public should let bad arguments circulate. |
| Oliver Wendell Holmes and Louis Brandeis (1919–1927) | Ideas have to be exchanged in the open, and "the fitting remedy for evil counsels is good ones"; danger must be imminent before political speech can be punished. 6 | What a court should have to show before punishing political speech. |
| Karl Popper (1945) | A tolerant society must keep the right to suppress intolerant movements, "if necessary even by force", because they may refuse the ground of argument altogether. 4 | What tolerance owes a movement that would end it. |
| Herbert Marcuse (1965) | "What is proclaimed and practiced as tolerance today, is in many of its most effective manifestations serving the cause of oppression"; under class rule, equal tolerance protects the established order. 7 | Why an open argument can return systematically false verdicts. |
| Jeremy Waldron (2012), with the critical race theory line (1993) | Hate speech works as group defamation: it attacks its targets' standing as respected equals, and that dignitary damage survives being answered. 3 | What harm speech can do that argument in reply cannot undo. |
| Japa Pallikkathayil (2020), with the feminist critique of pornography | Some speech intimidates its audience into silence, so restricting it can serve free expression rather than defeat it. 3 | Whether protection and expression always pull the same way. |
Two fault lines run through that table. The first is whether the market in ideas is a neutral sorting mechanism or one that reflects the power already in the room. Holmes's image of ideas competing until the best wins assumed a field that Marcuse says is tilted before anyone speaks, since the opinion reaching most people has already been shaped by who owns the press, then the broadcast spectrum, then the platform. The second fault line is who should hold the power to draw the line once some harm is conceded. Mill's exception hands a judge or a legislature the job of deciding when speech becomes instigation, and the American answer has been to make that power nearly unusable, while most liberal democracies write it into law.
What the fight is now
The printing press that started the argument has been replaced by a handful of private companies, and with it the sense of who the argument is about. In the older model, free speech was a relation between a speaker and a state. Jack Balkin's description of the present, cited by the SEP, is a triadic one in which speakers, governments and platforms all sit in the middle. 3 A platform removing a post can silence more speech in an afternoon than a ministry could in a decade, and the platform's own speech rights are what protect the decision.
Two legal settlements are in play. American law has largely treated platforms as conduits that carry what users post, and section 230 of the US Code broadly exempts them from liability for much of that content. 3 The First Amendment has meanwhile kept hate speech protected since R.A.V. v. City of St. Paul in 1992. 1 The European Union's Digital Services Act and the United Kingdom's Online Safety Act move the other way, imposing duties of transparency and removal, on the view that platforms exercise a governing function and should answer for it. 3 The split follows a line already drawn in the ICCPR, whose Article 19 and Article 20 ended up written into domestic law on opposite sides of the Atlantic.
A reading frame
Four questions do most of the work on the next free-speech claim that comes your way.
- Which sense is in play? A claim about what the law allows, a claim about why expression matters, and a claim about what should be tolerated are three claims. Find the one the sentence needs, and check the evidence offered against that one.
- Is the speaker facing a state or a platform? A prosecution and a deplatforming are different events with different remedies, and the free-speech arguments that fit one may not fit the other. 3
- Run Mill's test. Is the expression aimed at persuading an audience that has time to think, or is it an instigation to an act with no time left for discussion? The corn-dealer example is the benchmark. 5
- Ask who ends up holding the power. Every limit on speech assigns the decision to someone — a court, a minister, a platform's moderation queue. Ask what that someone is likely to do with the power, not only what they should do with it today. 3
Milton's wager was that truth would win an open fight. Most of the difficulty since has come from questions the wager left open: which fights are open, who referees them, and whether the referee is standing in the ring.
References
- 1Wikipedia, "Freedom of speech"
en.wikipedia.org
- 2John Milton, *Areopagitica* (1644)
gutenberg.org
- 3Stanford Encyclopedia of Philosophy, "Freedom of Speech" (2024)
plato.stanford.edu
- 4Wikipedia, "Paradox of tolerance"
en.wikipedia.org
- 5John Stuart Mill, *On Liberty* (1859), ch. 1
gutenberg.org
- 6Wikipedia, "Whitney v. California"
en.wikipedia.org
- 7
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