Limiting Free Speech (1): Introduction

I’m a strong defender of human rights in general and of free speech in particular. But I’m also convinced that the system of human rights is not a harmonious whole and that some rights can conflict; some rights may harm other rights, in which case one right has to be limited for the sake of the other. If you feel the urge of yelling “Fire!” in an overcrowded room, this expression of yours will cause panic and will therefore harm the right to life and bodily integrity of the people in the crowd.

This example is taken from a famous quote by Justice Oliver Wendell Holmes:

The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. (source)

I don’t claim that the choice for one right over the other is always as clearcut as in this example. Indeed, it can be a difficult and controversial choice, better left to impartial judges. But those choices have to be made. Here’s a previous post on the limits of human rights. NO OTHER LIMITS on rights are acceptable. Rights can only be limited by and because of other rights, not because of prudishness, political correctness, insult, humiliation or whatever.

This blog series examines some of the existing or proposed limits on the right to free speech, such blasphemy laws, hate speech laws, holocaust denial laws, pornography, derogatory speech laws, libel laws etc.

Free speech is an extremely important human right. You can check out this post on the importance of free speech for thinking and correct thinking according to Kant. In the same post you can find the argument by John Stuart Mill in which he correctly states that permitting the expression of errors or even lies encourages us to revisit the grounds of our own beliefs and thus strengthening those beliefs.

The peculiar evil of silencing the expression of an opinion is, that it is robbing the human race; posterity as well as the existing generation; those who dissent from the opinion, still more than those who hold it. If the opinion is right, they are deprived of the opportunity of exchanging error for truth; if wrong, they lose, what is almost as great a benefit, the clearer perception and livelier impression of truth, produced by its collision with error. John Stuart Mill

When we are confronted with opposing and controversial views, we benefit from having to justify our own views.

Given all this, any proposed or existing limitations on free speech should be strongly argued and the benefits of limitations should clearly and not marginally outweigh the harm. Any limit should also be very specific and not general. He or she who proposes a limit should prove that no other measures short of limiting rights can provide the same result. Limits can only be necessary for the protection of other rights or the rights of others. No other reasons are valid.

When two rights come into conflict, and a decision has to be made to limit one or the other right, one can look at the value that is being protected by either right. A journalist’s right to free speech can conflict with a politician’s right to privacy. If the expression by the journalist does not serve any important value, such as accountability, exposure of corruption etc. then the decision will be in favor of the right to privacy. If, on the other hand, the politician is corrupt, his privacy will be outweighed by the public interest of having a political class that does not engage in corruption.

When proposing a limit on rights, one should also be aware of the fact that this will probably not be enough to solve the problem that one is facing. Making the use of a right in a certain way a criminal act is not always enough to make that use go away. Racism, for example, will not disappear by making racists who engage in hate speech shut up. The underdog effect may even make them stronger. One should also try to do something about the causes of racism (poverty, education, etc.). The suppression of those who use rights against rights must be combined with the identification and elimination of the reasons why these people use rights against rights. Healing the symptoms but not the disease is inefficient, but some symptoms are so bad that something must be done, without losing sight of the causes of the symptoms.

24 thoughts on “Limiting Free Speech (1): Introduction”

  1. “If you feel the urge of yelling ’93Fire!’94 in an overcrowded room, this expression of yours will cause panic and will therefore harm the right to life and bodily integrity of the people in the crowd.”
    Murray Rothbard called this example of Holmes for what it is – a mistaken view.

    “When two rights come into conflict,”
    If that happens, one of the rights is not a right. As Rand said – “Contradictions do not exist. Whenever you think that you are facing a contradiction, check your premises. You will find that one of them is wrong.”

    “one can look at the value that is being protected by either right. “
    Of value to whom? As I see it, this should not be an issue at all – as long as the journalist does not violate the property rights of the politician, he is free to do anything he pleases. There is no such thing as public interest, only individual interests.

    I wrote about this topic, and had an extensive discussion here.

    PS: Don’t know if some one has pointed it out to you, but in your present wordpress theme, the box to type in the comments is ridiculously narrow.


  2. […] One of the great puzzles in human rights theory is the possible existence of absolute rights. It’s commonly accepted that most if not all human rights are “relative” in the sense that they can be limited if their exercise results in harm done to other rights or to the rights of others. Freedom of speech for example doesn’t offer “absolute” protection for all kinds or instances of speech (see here). […]


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