Freedom of expression

Abstract

This article surveys the classic and contemporary literature on the nature and limits of freedom of expression (or free speech). It begins by surveying the main philosophical justifications for free speech, before moving to consider the two most discussed topics in the free speech literature: hate speech and pornography. The article offers some brief reflections on the large number of arguments which have been offered on these topics. Three newer battlegrounds for free speech are examined at the end: no platforming, fake news and online shaming.

Full text

Received: 13 March 2021
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Revised: 27 May 2021
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Accepted: 31 May 2021
DOI: 10.1111/phc3.12759
ARTICLE
Freedom of expression
Matteo Bonotti
1
|Jonathan Seglow
2
1
Department of Politics and International
Relations, Monash University, Clayton,
Victoria, Australia
2
Department of Politics, International
Relations and Philosophy, Royal Holloway,
University of London, Egham, UK
Correspondence
Jonathan Seglow, Department of Politics,
International Relations and Philosophy, Royal
Holloway, University of London, Egham,
Surrey TW20 0EX, UK.
Email: j.seglow@rhul.ac.uk
Abstract
This article surveys the classic and contemporary literature
on the nature and limits of freedom of expression (or free
speech). It begins by surveying the main philosophical jus-
tifications for free speech, before moving to consider the
two most discussed topics in the free speech literature:
hate speech and pornography. The article offers some brief
reflections on the large number of arguments which have
been offered on these topics. Three newer battlegrounds
for free speech are examined at the end: no platforming,
fake news and online shaming.
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INTRODUCTION
Few weeks go by without some new controversy over freedom of expression. Whether the point of contention
involves Islamophobia, anti‐Semitism, Internet pornography, or recent phenomena such as fake news, trans wars
and cancel culture, citizens and scholars alike disagree as to whether, when, and why, free speech should be
regulated.
1
While constitutions, charters and declarations proclaim an abstract commitment to freedom of
expression, they clearly do not explain the rationale for doing so, or how to navigate difficult cases. To avoid a
dogmatic commitment to free speech, we need to look deeper, at the philosophical reasoning underlying it, applied
to different contexts. Our aim in this article is to give a survey of this reasoning especially its current forms, and
hence to map the terrain of free speech even if, for reasons of space, we cannot describe every important feature.
Despite the customary reference to J. S. Mill (a tradition we follow), or less often John Milton, philosophical
investigation of free speech is today a largely ahistorical enterprise. Some recent literature (e.g., Powers, 2011;
Rabban, 1997) of free speech's history contains insights relevant to contemporary debates, but unfortunately we
cannot engage with that here.
Our analysis proceeds as follows. Section 2outlines the main theories of free speech, the consequentialist
argument from truth, the appeal to autonomy, and free speech's role in democratic politics. Section 3considers the
main arguments for the regulation of hate speech, distinguishing between those that focus on what hate speech
This is an open access article under the terms of the Creative Commons Attribution License, which permits use, distribution and
reproduction in any medium, provided the original work is properly cited.
© 2021 The Authors. Philosophy Compass published by John Wiley & Sons Ltd.
Philosophy Compass. 2021;16:e12759. wileyonlinelibrary.com/journal/phc3
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itself does and those that concentrate on its further effects. Section 4examines longstanding debates on
pornography and free speech, illustrating the various ways in which feminists have characterized the harm that
pornography causes to women. Section 5offers a short overview of new debates in the free speech literature,
namely those on no‐platforming, fake news, and online public shaming, while Section 6briefly concludes.
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THEORIES OF FREE SPEECH
Free speech has been defended as a special liberty—distinct from other liberties and/or more robust than liberty in
general (Kendrick, 2017)—on different grounds. It is said to be vital to protect the diversity and pluralism liberal
societies value; an adjunct of liberal toleration and means of promoting tolerant attitudes; a safety valve that
enables public grievances to be raised peacefully, or a route to civic order and stability more generally; and a
bulwark against the slippery slope of governments’ tendency to arrogate ever greater legal and policy powers to
themselves. Relatedly, it can be defended via a reasonable distrust towards governments making correct decisions
on when to regulate or not regulate speech: given that distrust, it is safest to have a constitutional right to free
speech (Schauer, 1989). While there have been attempts to develop feminist (Williams, 2009) and Marxist
(Heinze, 2018a,2018b) accounts of free speech, we focus here on the most prominent liberal views, given its status
as a key liberal principle.
J. S. Mill's (2006) famous argument that widespread freedom of speech is necessary to realise the truth in
human affairs—since we can only gain justified confidence in our views in the open clash of debate—remains
influential in the literature but has been subject to sustained criticism. For a start, like all consequentialist
views, Mill's argument does not account for our intuition that free speech is valuable in itself, not simply as an
instrument (e.g., see Greenawalt, 1989), as in the autonomy and democracy views we consider in a moment.
Furthermore, Mill's position has been regarded as over‐intellectualised (Barendt, 2005, pp. 9‐10; Haworth, 1998,
pp. 24‐32), ignoring the fact that much speech is not really concerned with truth—for example football chants,
picketing strikers, or graffiti that stake out a gang's territory (McKinnon, 2006, pp. 123‐4). If consequences matter,
it also needs to be explained why truth should be prioritised over other potential effects of free speech, such as the
hurt and distress caused by hate speech. Mill does not neglect the fact that speech can harm, as in his famous
example of someone inciting a mob outside the house of a corn‐dealer thought to be responsible for starving them
(Mill, 2006, p. 64), or less obviously harms such as false advertising or malicious invasions of privacy (Riley, 2005).
However, for Mill free speech and the discovery of truth serve our happiness of a higher kind as progressive beings
committed to deliberation, and their loss is generally more serious than any harms potentially resulting from
speech. Moreover, such harms may be short‐lived since with time people are generally able to identify true opinions
and reject false ones (Schauer, 2012).
2
Mill's view is often associated with the ‘marketplace of ideas’ metaphor (Abrams v United States,1919) but this
has been vigorously questioned (Gordon, 1997; Howard, 2019a, p. 96; Simpson, 2013, p. 722; Sparrow &
Goodin, 2001; Waldron, 2012, pp. 155‐6). A free market for speech today gives us fake news on social media
(discussed below) and dangerous political populism (Barendt, 2005, p. 9). Where truth is valued, speech is usually
highly regulated to foster its emergence, in ways antithetical to the economic free market. For example, academic
journals will not publish articles containing claims that are clearly wrong or misguided, contrary to Mill's view that
false claims should be allowed to be aired for the truth to emerge (Alexander, 2005, p. 128; Post, 2000; cf.
Simpson, 2020). A more charitable interpretation of Mill's argument holds that it is the process of truth discovery
through speech that is valuable as it exercises and realises our critical deliberative capacities for reasoning
(Brink, 2008; cf. Miles, 2012).
In addressing the view that autonomy grounds free speech, it is helpful to differentiate between speaker‐and
listener‐centred theories,
3
and also between a procedural right to autonomy and the substantive ideal of a life
which includes critical deliberation. A procedural, speaker‐based view will claim that viewpoint‐based restrictions on
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free speech usurp an individual's own judgement in choosing what to express to others; Baker's (2011) account
contains elements of this view. Scanlon (1972), Strauss (1991), and Dworkin (1996, p. 200) in different ways
advance a procedural, listener‐based view claiming that individuals are sovereign over what they come to believe
based on what they read, see, and hear. For the state to pre‐empt their judgement, for example on the basis that
hateful, seditious or other dangerous speech will incite individuals to commit harms, fails to respect their right and
responsibility to determine for themselves how to act on the basis of the speech they receive (but cf.
Howard, 2019b). One common criticism of this argument is that much speech does not consist of propositional
content apt for individuals rationally to evaluate: many instances of hate speech, pornography, fake news, and
deceptive advertising fall into this category (cf. Scanlon, 1979), like some of the examples we just directed against
Mill. Another criticism is that individuals who value their autonomy would be reasonably concerned to protect it
from threats by others who are incited to endanger it, and thus the argument would licence lesser scope for free
speech than its more absolutist proponents imagine (Brison, 1998a; pp. 326‐9; Howard, 2019a, p. 97).
Defending free speech based on substantive autonomy involves the claim that the self‐determination at its core
is necessary for individuals’ self‐realisation in some morally valuable way (see Redish, 1982). Baker (1997,2011)
defends a speaker‐based substantive position that emphasises how autonomy involves disclosing one's authentic
beliefs to a social world shared with others. Individuals ‘must be permitted to act in and sometimes affect the world
[…] by trying to persuade or criticize others’ (Baker, 1997, p. 992). A listener‐based substantive approach would
claim instead that access to diverse, competing views in a plural society is necessary for autonomous individuals to
review and endorse only those views they value.
It has been argued that the autonomy argument promotes a sectarian view that is reasonably rejectable in
political liberal terms (Cohen, 1993, p. 222). It can also be objected that this approach is insufficiently discrimi-
nating: if individuals themselves determine what is valuable, then any more stringent protection granted to ‘high‐
value’—for example political or artistic—forms of speech over ‘low‐value’ kinds will need to invoke some further
claim, for example that politics and culture especially foster our deliberative capacities. A third criticism is that
substantive autonomy is over‐inclusive: since autonomy involves myriad life choices and there is plausibly some
right to it, it is unclear why freedom of speech, as just one incident of autonomy, requires its own special right
(Ladenson, 1997; Schauer, 2015; cf. Kendrick, 2017).
Seana Shiffrin's (2011,2014) recent thinker‐based argument for free speech is a version of the autonomy
argument that involves sparer assumptions than the substantive view and has attracted critical interest (e.g.,
Barendt, 2019; Scanlon, 2011). The core of Shiffrin's view is that we cannot understand the unique content of our
own minds without free speech; those contents only come to fruition through speech (cf. Gilmore, 2011; Mack-
lem, 2008). Shiffrin also argues that our interest in being recognised by others as persons with our own views is
impossible without unimpaired communication between persons (Shiffrin, 2011, pp. 289–97), besides other specific
human interests she enumerates.
The democracy‐based defence of free speech appeals to the conceptual and institutional connections between
those two values. Though an exclusively listener‐based version of the democratic view is rarely advanced, it can be
argued that citizens require access to reliable information and the means to critically assess each other's views to
exercise their democratic rights responsibly. The speaker‐based democratic view comes in more than one variety.
Dworkin (2009) and Weinstein (2011) argue that it is illegitimate for governments to enact laws that affect citizens’
vital interests unless they have had the opportunity to speak out in favour of or against them. In a similar vein,
Post (2011) maintains that citizens cannot reasonably regard themselves as authors of the law unless they have had
the substantive opportunity to influence the course of public discussion. Another democracy‐based account is that
defended by Sunstein (1993), who emphasises the role of high‐value political and artistic speech in democratic
deliberation. When it comes to this kind of speech, Sunstein argues, only viewpoint‐and content‐neutral time, place
and manner restrictions are justified, while there could be greater regulation of low‐value speech.
The democratic defence of free speech fits naturally with deliberative interpretations of the democratic ideal.
Redish (2013), however, argues for a more adversarial interpretation, which emphasises how each democratically
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minded citizen has her own interests that free speech helps her to realise. By contrast, Estlund's (2009) epistemic
interpretation of democracy, which sees it as the political arrangement most conducive to arriving at cogent or
well‐founded views, combines the democratic ideal with the insight of Mill's consequentialist view.
The democratic view can explain how certain apparent restrictions on free speech are in fact means to promote
it. For example, this approach might support regulating the speech of powerful actors (e.g., via limits on campaign
advertising) and fostering the speech of relatively marginalised groups (e.g., via guaranteed air time)
(cf. Redish, 2001). Yet one objection to the democratic view may be that it cannot defend the free speech rights of
resident non‐citizens who lack formal voting rights. Moreover, while the argument's political focus offers stringent
protection for political speech and broader social commentary that is most valuable or vulnerable to external
interference, it may find it hard to accommodate modes of intuitively ‘high‐value’ speech such as scientific speech or
speech between members of a closed religious order.
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HATE SPEECH
Hate speech is perhaps the most debated topic in the contemporary free speech literature, with the contrast
between US First Amendment protection and laws against hate speech in other states providing practical import to
that debate. The rise of online hate speech (e.g. on social media) ‐instantaneous, rapidly dispersed, and often
anonymous (Brown, 2018)‐has made the discussion more urgent, not least because so much free speech
censorship is now carried out by unaccountable corporations.
Hate speech maligns or vilifies people based on their group identity: race, ethnicity, religion, or sexual orien-
tation, and other categories besides. As a form of conduct, the conceptual core of hate speech is arguably its assault
on the civic standing of those it targets, where it exploits their already marginal or vulnerable status (Bonotti &
Seglow, 2021, pp. 32‐4). This definition helps explain why hate directed towards more privileged members of
society is not (generally) hate speech and also helps make the analytical distinction between hate speech and non‐
hateful offensive speech, such as that directed at religious majorities. While hate speech attacks people's identities,
offensive speech is directed at their beliefs (Bonotti & Seglow, 2019).
In specifying the harms of hate speech, it is helpful to distinguish between approaches that centre on what hate
speech itself does and those that look at its further effects (this is very roughly the difference between its illo-
cutionary and perlocutionary force).
In the former category belong those writers who see hate speech as a form of subordinating speech, for
example one that helps instil the idea of racial inferiority in its victims’ minds (Matsuda, 1989, p. 233), undermines
their self‐respect (Lawrence, 1987, p. 351), or is an affront to their dignity (Delgado, 1982). Related to subordi-
nation, hate speech has been seen as a form of discrimination, as when a ‘Whites Only’ sign was hung outside a
firm's restroom door (EOOC v Tyson Foods, Inc., 2006), or as a form of stigmatising speech, or one that spreads
harmful stereotypes about some group. Thus in Beauharnais v Illinois (1952), which concerned a racist pamphlet, the
US Supreme Court ruled against speech which exposed African Americans to ‘contempt, derision, or obloquy’. Hate
speech has also been seen as a form of silencing because of the way in which, if they have sufficient social authority,
hate speakers can derank their victims in an illocutionary sense (Maitra, 2012), or help maintain a social climate in
which certain minority groups are not listened to or not trusted, what Fricker (2007) calls ‘testimonial injustice’.
Silencing is clearly relevant to the autonomy‐based and democratic defences of free speech.
Hate speech can also be considered a case of group defamation, one that attacks the social reputation of those
it targets. This strategy has proved attractive for a number of hate speech scholars (e.g., Matsuda 1989), and is at
the core of the influential account of hate speech provided by Jeremy Waldron (2012). According to Waldron, hate
speech is harmful and should be regulated because it attacks the equal civic status of members of vulnerable
minorities and undermines the public good of ‘assurance’, ‘the ‘pervasive, diffuse, general, sustained, and reliable
underpinning of people's basic dignity and social standing, provided by all to and for all’ (Waldron, 2012, p. 93). Hate
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speech targets vulnerable minorities and assaults their civic dignity by leveraging (and compounding) their already
disadvantaged status; it could not gain purchase on members of privileged groups (Waldron, 2012, p. 237, note 13;
see also Bonotti & Seglow 2021, pp. 33‐5). Waldron's argument has been criticised on the grounds that the equal
civic status of minorities could be protected via laws against discrimination, violence, harassment and other hate
crimes, as well as through policies aimed at improving such groups’ social and economic circumstances, without the
need for hate speech laws (Brown, 2015; Seglow, 2016; Simpson, 2013).
As far as its effects (or perlocutionary force) are concerned, a standard way of understanding the harm of hate
speech is that it can incite violence, public disorder, and a climate of hatred, and that in the long term it may result
in injustice and discrimination against vulnerable minorities (e.g., Brown, 2008). While the short‐term effects of
hate speech may be straightforward to ascertain, its longer‐term consequences can be difficult to compute. The
presence of various intervening factors and possible counterfactual claims makes it hard to identify hate speech as
a significant cause of long‐term injustices, and a speaker's responsibility may reduce as a result (cf. Ten, 1980).
Similar problems attend the view that hate speech harms the health of its victims (Brown, 2015, pp. 56‐7), since
their ailments may result from other social and economic injustices they suffer (Heinze, 2016; Strossen, 2018).
This raises a more general methodological question related to the study of hate speech. When normative
arguments regarding the regulation of hate speech appeal to its harmful effects, it is important that those who
advance them engage with relevant empirical research in the area (Simpson, 2019). Some scholars maintain that
this engagement has been limited. According to Eric Heinze, for example, ‘[t]he problem with countless prohibi-
tionist writings is that they start with those empirically demonstrable harms of immediate, interpersonal situa-
tions…but then extrapolate straightforwardly from them to a purely rhetorical empiricism, lacking any empirical
references, about equivalent harms putatively caused by hatred expressed within public discourse’ (Heinze, 2016,
p. 126). However, this claim seems exaggerated. Some of the theoretical literature on hate speech has in fact
engaged with empirical research (e.g., Brown, 2015; Gelber & McNamara, 2013,2015,2016). Perhaps a more
plausible claim, then, is that the social scientific literature struggles to provide conclusive evidence of hate speech's
distinctive contribution to the harms its victims suffer, given that they are often subject to other injustices too
(Brown, 2015, pp. 56‐58; Simpson, 2019, p. 90).
One charge often levelled against hate speech laws (even when they are justified) is that they may be too
vague, subjective, and overbroad, or that they may assign enforcing authorities too much discretion in their
implementation (Strossen, 2018), including the power to silence marginalised groups (2018, pp. 81–88). Partly for
this reason, some have defended the idea of counterspeech, an alternative to formal regulation. Counterspeech
involves victims of hate speech or other citizens speaking back to hate‐mongers in order to assert their rights
and equal civic status, whether through marches and demonstrations, or on social media. Corey Brettsch-
neider (2012) argues that the state itself should engage in counterspeech via its public officials and by supporting
civil society associations that engage in it. Yet counterspeech may be difficult when the hate speaker is anon-
ymous or much more powerful than the victim (Brown, 2015, p. 261), or ineffective given vulnerable minorities’
marginalized status.
When it comes to the regulation of hate speech, empirical research which examines its causes may be
particularly relevant. These include intergroup bias (Leyens et al., 2007 p. 140; Roussos & Dovidio, 2020) as well as
the shock and trauma that can result from events such as financial crises, pandemics, emergencies, disasters, wars,
and terrorist attacks (e.g., Benesch, 2014; Chetty and Alathur, 2018; Hinton, 2010). Sternberg (2020, p. 4) offers a
useful framework that traces hate speech back to seven different factors (what he refers to as the ‘FLOTSAM
model’): (a) fear, (b) license to hate granted by leaders, (c) obedience to authority, (d) trust in one's own flawed
thinking, (e) sense of belonging, (f) amplification of arousal, e.g., by authoritative persons who engage in manipu-
lation; and (g) modelling, the imitation of other people's behaviour. This research is relevant to normative dis-
cussions of hate speech's regulation: if we know what the causes of hate speech are, states could tackle its roots
instead of (or as well as) restricting its expression.
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PORNOGRAPHY
The regulation of pornography is a longstanding issue for free speech scholars but the explosion of online
pornography in the past two decades has made it more topical and urgent.
4
A reasonable normative definition is
that ‘pornography is sexually explicit material designed to produce sexual arousal in consumers that is bad in a
certain way’ (West, 2012a; see also Watson, 2010, pp. 535‐6).
Early debates on pornography often adopted a legal moralist (Devlin, 1968) position, regarding it as a threat to
society's ‘moral fabric’, or conceptualised it through the categories of the ‘offensive’ or the ‘obscene’. Contemporary
feminist theorists focus instead on the harm pornography causes to women. Four categories of harm can usefully be
distinguished. First, pornography is said to be responsible for sexual violence and other harms (e.g., harassment)
perpetrated against women, a view pioneered by the feminist writer Catharine MacKinnon (e.g., 1993; see also
Dworkin, 1993; Scoccia, 1996). This view seems to be supported by recent meta‐analyses of the relationship be-
tween pornography and sexual violence, which have found a positive correlation (Hald et al., 2010; Wright
et al., 2016). However, not all studies reach the same conclusion. More importantly, correlation does not entail
causation: perhaps some men are more likely to view violent pornography because they are already predisposed to
harm women, rather than vice versa. Thus a more plausible claim is a probabilistic one: pornography may increase the
likelihood of violence and other harms against women, though it is hardly the only cause (Eaton, 2007, pp. 696‐7).
In some religiously conservative societies, for example, little pornography circulates but harm against women may be
rife. As we argued in relation to hate speech, it is important that philosophers working in this area pay attention to
developments in the social scientific literature on the link between pornography and sexual violence (and other
harms), as that may well have implications for their normative arguments.
Second, pornography is said to harm the women involved in its production. For example, women may be
tricked, trafficked, or blackmailed into pornography, or harmed via so‐called ‘revenge porn’. Furthermore, even
when pornographic actors apparently endorse their choice, many of them may be manipulated and/or not be fully
aware of what they are becoming involved in, and this plausibly erodes the moral force of the consent principle. We
also need to consider issues such as the availability of alternative economic options, consent manufactured by
patriarchy, and the burden of stigma for women who have worked in the pornography industry.
Third, it is often argued that pornography subordinates women in society more generally. MacKinnon pio-
neered this claim; one dimension of it is that the circulation of pornography bears some causal responsibility for the
myriad harms society visits on women including harassment, discrimination, inequality of opportunity, domination,
lack of political voice, and sexist attitudes more generally. While many other feminists have followed MacKinnon in
arguing that pornography especially contributes to reinforcing gender inequality, some have contested this claim.
Cynthia Stark (1997), for example, argues that Christian doctrine contains an equally damaging view of women as
servants of men.
MacKinnon (1993) was the first to make the conceptual claim that pornography constitutes the harm of
subordinating women, and thus is a form of conduct akin to hate speech. In the much‐discussed Anti‐Pornography
Civil Rights Ordinance that she drafted with Andrea Dworkin, pornography was defined as ‘the graphic sexually
explicit of subordination of women’.
5
(The Ordinance was struck down by US courts on the grounds that censoring
a message of subordination violated First Amendment viewpoint neutrality). The subordination view has been
developed with considerable sophistication by recent philosophers. On Langton's (1993,2009) influential speech
act theory, pornography is an illocutionary act of subordination that ranks women as inferior to men, by portraying
them in a demeaning way, deprived of critical rights and powers, and one that objectifies them, by treating them
merely as means for men's pleasure.
Langton's claim has been much discussed. It is not clear, for example, that pornography (always) includes the
intention to subordinate. Furthermore, it is unclear whether and how the producers of pornography possess the
requisite speaker authority necessary to derank women compared, for example, with legislators who have formal
authority (e.g., lawmakers in apartheid South Africa who deprived black citizens of the vote). Perhaps systemic and
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embedded patriarchal norms are sufficient to confer this authority or perhaps, as Maitra (2012) has suggested in
the context of racist hate speech, pornography's authority as a speech act comes from men and women's acqui-
escence to it, i.e., their general failure to speak back. As an alternative to Langton's view, Mary Kate McGo-
wan (2019) has recently reformulated the subordination hypothesis in a philosophically sophisticated way through
the idea of ‘conversational exercitives’, implicit norm‐enacting moves in speech practices that change what is salient
or permissible in that practice. Thus, for example, if male co‐workers have a conversation in which one degrades a
female colleague, that makes it permissible to degrade female colleagues in their future conversational practice.
Conversational exercitives do not require intention or authority in the way Langton's illocutionary subordination
does. However, McGowan's argument is liable to the objection that if the harmful actions rendered permissible do
not ensue, then no subordination has occurred, which seems counterintuitive.
Closely related to subordination, a fourth harm is the way pornography silences women, again a claim pio-
neered by MacKinnon (1992). Silencing may occur in a straightforward causal sense where pornography helps
create a hostile environment that makes women reluctant to speak out e.g., about sexual harassment. Beyond that,
Hornsby and Langton (1998; cf. Langton, 2009; Maitra, 2009; West, 2003) maintain that silencing occurs through
disabling women's speech in an illocutionary sense by interfering with their communicative intentions, for example
their intention to say no to sex. Widespread pornography consumption by men means that women's speech often
misfires, failing to gain uptake, a phenomenon that may also occur with victims of racist hate speech (West, 2012b).
McGowan (2009,2019, pp. 149‐50) argues that women's rejection of men's sexual advances also requires that men
accept women's authority to refuse them, and pornography's objectification of women may erode the recognition of
that authority, even if uptake is secured. Silencing can occur too if men believe women's refusals are insincere or
fail to recognise their true feelings; on McGowan's norm‐governed theory, pornography makes these types of
actions permissible and therefore more likely (2019, pp. 150‐5).
Despite these harms, some liberals maintain that pornography is a form of speech that seeks to alter the moral
environment in some way and therefore merits protection (Dworkin, 1993), a version of the democratic view; that
by censoring pornography governments fail to respect citizens’ individual autonomy (e.g., Dworkin, 1981; but see
Langton, 1990 for a critique); or that governments cannot reliably distinguish harmful pornography that requires
censorship from other kinds.
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NEW CHALLENGES
In recent years new issues, many driven by rapid developments in social media, have entered current debates on
free speech. Here we briefly mention three.
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No‐platforming
Universities have been deeply involved in free speech battles in recent years, reflecting wider culture wars
(Leaker, 2020; Titley, 2020). Faculty with objectionable views, decolonised curricula, and safe spaces for ‘snowflake’
students faced with views that, according to their critics, challenge their identities (Fish, 2019, pp. 65‐108; Cor-
lett, 2018; cf. Cross & Richardson‐Self, 2020) have all been foci of debate. Significant too is no‐platforming, that is,
barring controversial individuals such as far‐right politicians and professional provocateurs, from speaking at
university campuses. No‐platforming is highly controversial. In their influential book The Coddling of the American
Mind, for instance, Lukianoff and Haidt (2018) argue that no‐platforming can be traced back to a failure, in Western
liberal democracies, to instil certain forms of psychological resilience in post‐Millennial generations. By contrast,
some scholars have defended the practice by arguing that university inquiry is different from public debate as it
demands systematic, rigorous, impartial, and evidence‐based deliberation, rather than the expression of any
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viewpoint no matter how prejudiced or ill‐informed (Post, 2017; cf. Fish, 2019, pp. 68‐72). In defending a version of
this argument, Simpson and Srinivasan (2018; see also Simpson, 2020) emphasize how academics routinely engage
in content discrimination, by reviewing research, appointing staff on academic merit, setting the curriculum, grading
students’ work, and so on, thus de facto sanctioning inequality of status among competing ideas in order to guar-
antee academic rigour and underwrite universities’ institutional independence. For the same reasons, they argue,
universities can also legitimately no‐platform outside speakers who fail to respect academic norms.
Other writers challenge this perspective by distinguishing between universities’ core research and teaching
activities, where content restrictions are permissible, and broader public debate on campus, where contentious free
speech should be guaranteed and therefore no‐platforming disallowed. Chemerinsky and Gillman (2017) take a
more absolutist position of this kind, while Ben‐Porath (2017) calls for free and open exchange tempered by some
pragmatic reforms. However, Simpson rejects this distinction, arguing that ‘the communicative climate of the
campus at large [should be] characterised by similar kinds of rigour, thoughtfulness, and deference to academic
expertise as the lecture theatre or faculty research seminar (2020, p. 299). Likewise, Levy (2019) argues that, given
the prestige of speaking platforms, potential speakers who would undermine universities’ epistemic authority—
central to their mission ‐may legitimately be excluded (e.g., Holocaust deniers or climate change sceptics).
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Fake news
The widespread use of personalised social media to deliver and access information on current affairs has amplified
the emergence of fake news, disrupting some of the classic philosophical justifications for free speech. While there
is an ongoing debate about precisely what constitutes fake news (Aikin & Talisse, 2018; Gelfert, 2018; Rini, 2017),
two key elements are that its producers normally intend deliberately to mislead their audiences (but cf. Michaelson
et al., 2019) and that it displays the simulacra of journalistic accuracy while de facto violating its standards. Besides
this, there is disagreement as to whether fake news is driven by political (as opposed to e.g., economic) goals
(Rini, 2017, p. E45) and whether its effectiveness depends more on flawed institutional structures or on individual
epistemic and cognitive weaknesses (Chambers, 2021; Rini, 2017).
Fake news challenges the Millian view that robust free speech is the route to better justified opinions. Indeed,
fake news stories’ social circulation may contribute to their widespread endorsement rather than demise (cf.
Schauer, 2012, p. 137). This may be exacerbated by people's cognitive biases (Gelfert, 2018, pp. 111‐2; Cham-
bers, 2021; cf. Moles, 2007); by their lack of the epistemic virtue of ‘accuracy’, which involves ‘making a goodwill
effort to find out what is true or to acquire true belief’ (Chambers, 2021, p. 159); and by a social media infra-
structure that facilitates fake news's rapid diffusion, with uncertain norms over whether sharing messages implies
endorsing them (Rini, 2017). Similarly, by exploiting cognitive biases, fake news seems to disrespect individual
autonomy. It is also likely to thwart rather than promote rational debate and to undermine trust in the democratic
process and democracy's ‘truth‐tracking potential’ (Chambers, 2021, p. 153).
Vigorous counterspeech against its misinformation is one response to fake news. Yet, once fake news has
shifted the discursive norms on a topic and entrenched itself in public opinion, pre‐emptive measures may be
necessary. These may include seeking to empower citizens to discern fake stories more readily (Lepoutre, 2019)
and holding those responsible for untrue stories accountable (Rini, 2017, p. E55), for example by flagging fake news
sites with a low ‘reputation score’ on social media, thereby reducing their credibility.
5.3
|
Online public shaming
Online public shaming occurs when individuals are publicly censured on social media for allegedly reprehensible
actions, often resulting in visible humiliation. Like pornography and hate speech, it is speech as conduct. While the
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mobilisation of public shame against egregious wrongdoers, such as racists, may seem quite acceptable, the issue is
not always so clear, and evaluating its moral permissibility involves examining various normative considerations.
Billingham and Parr (2020a,2020b) outline some criteria aimed at guiding this assessment (2020b, pp. 1001‐6).
These include proportionality, which requires taking into account the negative consequences of online public
shaming, only employing it to enforce ‘morally authoritative social norms’ (Billingham & Parr, 2020a, p. 373) and
condemn serious harm; considering the norm violator's genuine liability for her behaviour (2020b, pp. 1001‐3); only
using shaming if it is no more harmful than alternative options; respecting the privacy of norm violators; not abusing
them or attacking them based on their ascriptive characteristics; and aiming for their reintegration back into so-
ciety. On their view, online shaming is a means to hold shamers accountable for their actions. Jacquet (2015) has
likewise pointed to the productive potential of shame, as a means of militating for institutional reform directed at
those with power and status, such as high‐profile tax avoiders or individuals holding prestigious positions with
sexist views. However, there can be backlash effects against shamers who, like whistleblowers, can make them-
selves more vulnerable (Adkins, 2019).
By contrast, according to Aitchison and Meckled‐Garcia (2021), online public shaming is an informal mode of
punishment that targets the reputation of norm violators and excludes them from the community of norm‐abiding
citizens. As a form of punishment, public shaming is problematic since it is not accompanied by the right to due
process that is central to liberal democracy, including the right of reply. Moreover, as Nussbaum (2015) argues,
shaming (like humiliating punishments) also fails to respect the equal dignity of its targets by signalling that they are
second‐class citizens.
6
|
CONCLUSION
Free speech absolutists tend to cleave to the value of individual liberty and focus on the content of speech. Those
more willing to regulate it tend to see speech as a form of conduct and, at least in debates around hate speech and
pornography, are concerned with threats to individuals’ status, a more egalitarian view. While regulating free
speech does normally entail a restriction of individual freedom, liberals should also be concerned with citizens’
equal status, and the value of a life free from domination, oppression and subordination. Worries about campus
hate speech, online shaming and the distorting effects of fake news can also be seen as motivated by a concern to
protect individuals’ equal ability to participate in public debate (cf. Bejan, 2017). Thus the balance between the
libertarian and egalitarian dimensions of liberalism may be central to future developments in the free speech
literature. And that debate may partly hinge on how we understand ‘speech’, and on whether and why we think
speech is special (see Brison, 1998b; Kendrick, 2017,2018; Schauer, 1983,2015; Simpson, 2016). Perhaps some
understandings of what speech is, and why it is special, may justify assigning greater importance to its libertarian
than to its egalitarian dimension, and vice versa. But that is a question that we leave for another day.
ACKNOWLEDGEMENTS
We are grateful to two anonymous referees for their comments on an earlier version of this article. We received no
external funding for this article.
CONFLICT OF INTEREST
We have no conflicts of interest to report for this article.
ORCID
Matteo Bonotti https://orcid.org/0000-0001-8241-4896
Jonathan Seglow https://orcid.org/0000-0002-2766-1955
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ENDNOTES
1
We use free speech interchangeably with freedom of expression in this article.
2
It should be noted that Schauer sees truth as only one component in the calculus of overall utility and criticises Mill's
view.
3
Marmor (2018) claims that the right to speak and the right to hear are two quite separate rights.
4
In this Section we only consider pornography involving women, which is the majority of it. Other forms of pornography
raise distinct normative issues.
5
The full text is available at www.nostatusquo.com/ACLU/dworkin/other/ordinance/newday/AppD.htm.
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AUTHOR BIOGRAPHIES
Matteo Bonotti is Senior Lecturer in the Department of Politics and International Relations at Monash Uni-
versity, His research interests include linguistic justice, free speech, political liberalism, food justice, and the
normative dimensions of partisanship. His work has appeared in such journals as the American Political Science
Review,Ethical Theory and Moral Practice,The Journal of Politics,Political Studies, the Journal of Applied Philosophy,
Law and Philosophy, and the European Journal of Political Theory. He is the author of Partisanship and Political
Liberalism in Diverse Societies (Oxford 2017), Recovering Civility During Covid‐19 (Palgrave 2021) with Steven
Zech, and of Free Speech (Polity, forthcoming) with Jonathan Seglow. He is currently Primary Chief
Investigator on a project funded by the Templeton Religion Trust and the University of Oklahoma examining
civility and incivility in public life in Australia, the USA and the UK
Jonathan Seglow is Reader (Associate Professor) in Political Theory in the Department of Politics, International
Relations and Philosophy at Royal Holloway, University of London. He is co‐author (with Matteo Bonotti) of
Free Speech (Polity, forthcoming), and of two articles on free speech in Ethical Theory and Moral Practice, one
co‐authored with Matteo Bonotti. He has published extensively on religious accommodation in Ethnicities,
Critical Review of International Social and Political Philosophy, the Journal of Applied Philosophy and elsewhere,
and is co‐editor (with Andrew Shorten) of Religion and Political Theory (Rowman & Littlefield, 2019). He is
the author of the monograph, Defending Associative Duties (Routledge 2014). He previously co‐edited Res
Publica: A Journal of moral, social and political philosophy.
How to cite this article: Bonotti, M., & Seglow, J. (2021). Freedom of expression. Philosophy Compass,16(7),
e12759. https://doi.org/10.1111/phc3.12759
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