When is it constitutional to limit free speech

Thoughts we have are, therefore, lawfully possessed. The second consequence is that the owner has the privilege to use what is his, which includes the power to express himself, mainly to communicate to others what he believes, understands, feels, perceives or prefers. At the same time, autonomy depends, though not exclusively, on freedom of speech to be maximized. Schauer teaches that ideas are not static, they regularly change, evolve, and refine. Thought is a process, and its main instruments are language and communication.

Intellectual isolationism is almost wholly inconsistent with intellectual development. Free Speech: A Philosophical Enquiry.

Schauer emphasizes that linguistic communication is significant for the intellectual growth of man, both as speaker and as listener. Often someone has an incipient idea, but sees it develop or perceive its weaknesses at the first moment when it needs to be intelligibly transmitted to another person.

According to Schauer, communication helps those who communicate to clarify and better understand their thoughts. On the other hand, listening, reading and seeing what others have to say puts a man in touch with a wide variety of opinions and information that he may not be able to imagine or articulate alone.

In this case, says Schauer, communication offers the chance to practice the vital talent of evaluating and choosing between ideas. Participating in communicative relationships is, therefore, a way of elaborating, understanding, and optimizing the ability to think. For the constitutional law, which disciplines relations between individuals and the government, the implication between freedom of conscience and freedom of speech has a very specific meaning.

Cambridge: HarvardUniversity Press, , p. In The Tolerant Society , Lee Bollinger highlighted the teaching of tolerance as a reason for protecting speech.

He starts from the premise that societies tend to follow and impose uniform ideas and practices and to be severe with dissenters, acting against them not only through legal penalties such as imprisonment but also through informal modes of punishment such as stigma and isolation.

Stuart Mill also gave importance to this topic. According to him, social oppression is even more ruthless than legal oppression because although it is not based on extreme punishments, it leaves fewer ways to escape. Bollinger accepts the opinion about the tendency for inflexibility and the heaviness of social oppression.

The tolerant Society. New York: OxfordUniversity Press, , p. However, according to Bollinger, social hostility is often at the basis of legal punishments. One of the most dramatic passages in the history seems to prove it. The torture and killing of Jesus Christ were formally consented by Pontius Pilate, procurator of the Roman emperor in Judea, but he acted reluctantly.

According to the Gospel of John, Pilate washed his hands and delivered Jesus to martyrdom, but the one who imposed the outcome, at the risk of revolt, was the crowd in front of the Praetorium.

According to Bollinger, freedom of speech does the job of making people aware of the need for tolerance.

If minorities and dissidents are free to express what they think, the message addressed will be that respecting differences is a virtue. Free speech aims at educating for tolerance, that is, for the development of the social capacity to control the impulse to domesticate and, especially, to punish the divergent because of their beliefs and convictions.

A tolerant society is one that renounces the aspiration to coerce and harass by formal or informal means those who profess supposedly objectionable ideas, whether political, moral or religious. The rationale of tolerance also suggests that intolerance is somewhat useless because human mind is ultimately irrepressible. Pretending to dominate the conscience of dissidents should not be an objective for the government because it is not even feasible.

Baruch de Espinosa, in his Tractatus Politicus , had already argued that a man could never be led to believe in what is contrary to his feelings and thoughts, to love what he hates or hate what he loves. According to him, the consequence is that all actions to which no one can be incited by promises or threats are outside the government purposes.

No one, for example, can abdicate his ability to judge. The law that would try to compel human mind would be nothing but a delusion. He thinks that no one may believe under the prescription of another.

The nature of human understanding cannot be constrained by external forces. Confiscating property or tormenting the body with captivity and torture will be in vain if, through these torments, man in power want to deprive a man from his faith and beliefs 38 38 LOCKE, John. In addition, the argument of tolerance holds that more dangerous than granting free speech is subjecting speech to repressive controls.

If force is futile and ineffective to constrain conscience, its employment will eventually provoke the resistance of true believers, and instead of harmony and concord there will be revolts, perhaps bloody ones. The religion wars that have swept Europe since the Reformation are attributed more to the persecutions of schismatics and heretics than to the diversity of faith among men. Therefore, from a pragmatic point of view, intolerance is regarded as more dangerous to social order than tolerating speech that is allegedly false or pernicious.

Tolerance and Community. Columbia: University of Missouri Press, , p. The inability to submit human mind and the danger of violent resistance are reasons for political prudence against intolerance. Era dos Direitos. Rio de Janeiro: Campus, , p. Thus, tolerance is not only convenient but the one option consistent with democratic governments, the search for truth and individual autonomy. When freely speaking is a way of engaging in political life, of deepening, questioning and innovating our comprehension of the world, of expressing mental states, such as beliefs and feelings, or of indirectly educating individuals for tolerant behavior in social relations, speech is deemed valuable and worthy of protection just for performing a role by which free speech is cherished.

So, the logical implication is this: the constitutional safeguard of freedom of speech is neutral as to the content of the speech, or the content of ideas. The principle of neutrality means that a message has expressive value whatever the topic in question is. Any subject is worthy of being addressed: abortion, reincarnation, sodomy, Marxism, revolution, death penalty, adultery, and witchcraft.

There are no proper and improper matters. There are no taboos. Also, having expressive value does not depend on the viewpoint. Being in favor pro-choice or against pro-life abortion makes no difference. Besides, saying something with expressive value does not depend on sounding good to others or being politically correct.

It is allowed to spoil modesty, to challenge the unquestionable, to confront the dominant ethics. People are not confined only in sympathetic, condescending, virtuous, traditional opinions, nor only do have to speak with elegance and softness.

Moreover, having expressive value does not require speech to be reverent to authorities or allied to government interests. Constitutional neutrality leaves no room to distinguish between accurate and erroneous theories, intelligent and stupid comments, fair and unjust claims. In the eyes of third parties, lay people, scholars or authorities, some version of history may seem inexact, and the criticism of a literary work may sound unfounded.

A religious feeling might seem foolish, an appeal for political reform might seem baseless. However, acceptance and receptivity are not conditions for protecting speech. The quality of what somebody says is undoubtedly a relevant predicate in science, philosophy, and religion. Constitutional law, however, does not separate in value the clever and the silly thinking. Freedom of speech indiscriminately values any speech compatible with the foundations of its protection. Provided that, however fragile, vulgar or unpleasant, speech is contained within the limits that allow it to be achieved by the underlying reasons of protection, it has expressive value.

If such a simple implication were not so neglected, some state judges in Brazil would not have done too much to ban the so-called Marijuana March in It was no more than a demonstration against anti-drug legislation, expected to occur in several capitals of the country. The value of the speech had nothing to do with the merit of the ideas. Whether or not the protesters were right or wrong and had or not a good cause did not matter at all. The only thing that counted is that they were citizens using their freedom to criticize legal canons and ask for new ones.

By the way, there is no difference between protesting against making marijuana use a crime and the law that imposes a tax, or that prohibits the naked in public. Somebody could argue that advocating drug release is tantamount to inciting a break of the law, and the adoption of criminal conduct. Nevertheless, it is an unfortunate mistake to confuse an appeal for changes in the law with a stimulus to break the law.

Protesting the anti-drug law is not smoking or inciting smoking; it is only expressing beliefs and desires in harmony with free speech justifications.

Supremo Tribunal Federal. Access: October Constitutional neutrality hugely spreads the scope of free speech. Under democratic perspective, for example, even ideas tending to sound degrading will be sheltered. Enacting legislation is the most genuine product of political agency. In a democracy, if some can argue in favor, others can argue against because all are equal in the right to choose a side and to speak about no matter the greater or lesser respectability of what they think and say.

Since speech does not go beyond opposition to a legislative act, it is valuable and irrepressible. Similarly, tolerance justification is not only applicable to the good and fair speech of minorities and dissenters against interests and practices of majorities and conservatives, which are considered backward and nefarious.

It gives perhaps particular value to extremist thinking, one that almost any of us perceive as immoral and racist. However, if freedom of speech intends to promote tolerance, the protection of extremism best meets such scope because it has higher symbolic significance and pedagogical utility. It is easier to live with the speech of minorities and dissidents when the content is politically correct.

Nevertheless, the profound meaning of tolerance only becomes accessible before the shocking and scandalous thought. To form a tolerant society, which does not yield to the temptations to criminalize ideas under the pretext of being false or dangerous, requires pressing the tolerance principle to the extreme as a rule and without allowing casuistic manipulations.

Moreover, if autonomy is a right, no man should be silenced under threat of legal punishment just because what he dislikes seems ignoble. In the hypotheses described, free speech values undoubtedly apply. In the first situation, there is a moral argument against legalizing same sex marriage; in the second, there is a confession of aversion feelings toward some groups.

Made in the assertive mode not in incitement-to-violence, truly-threatening and fighting-words contexts, for instance 42 42 See Infra: Speech and Action. Examples of detestable ideas are not restricted to the terrain of prejudice.

Even astounding, these ideas are worthy of protection in the light of free speech values. The contempt for the principle of neutrality would not only undermine the values of democracy, truth, autonomy and tolerance but would hurt a more general constitutional precept, according to which people are equal in dignity and, as such, must also be equal in respect.

Even if free speech was not singular prerogative, the right to communicate ideas to others despite their content would work as an autonomous consequence of equality. All are equal before the law, without distinction of any kind. With this traditional formula, many constitutions enunciate the principle of equality. The norm is a complex one.

Its content is plural. However, there is a predominant meaning. The principle prevents the legislative power from making legal discrimination, that is, conferring some rights for some people and not conferring to others, or denying some rights for some and not refusing to others. Respecting human dignity is fulfilled, in principle, by the attribution of equal privileges and responsibilities to all.

The principle applies to every domain of human activity, profession, company, locomotion, contract, association, leisure, etc. If the statutory law demands higher education for a person to become a physician, this requirement should be extended to everyone, except for reasons that may justify different legal treatment in this case, hard to imagine.

There is no difference regarding speech. If men are equal in dignity and earn the same degree of respect, restricting only some ideas instead of others would mean that those who sustain them are less worthy. If a public building may be used in which to say, in time of war, that the war is justified, then the same building may be used in which to say that it is not justified. If it be publicly argued that conscription for armed service is moral and necessary, it may be likewise publicly argued that it is immoral and unnecessary.

The principle of equality does not only prohibit the legislative power from denying some persons the right to profess specific ideas out of disagreement and contrariety while guaranteeing others the right to say the opposite.

It binds all public powers. For the judiciary, equality takes the form of a duty to invalidate viewpoint discriminations established by statutory law and prevent people from being silenced, imprisoned and held accountable. When legislative power yield to inquisitorial pressures of majorities or influential organizations, the courts must stop the course of intolerance and guarantee the benefits of equality without distinction of ideas. It is true that equality is not totally closed for legal differentiations.

Sometimes, granting some people the rights denied to others is indispensable to compensate unfortunate situations and to balance opportunities. It might be said that it is the case when the law reserves a percentage of vacancies in public service to the disabled. Other times, the denial of rights granted to others is permissible based on the logical correlation between alegitimate objective and the factor of distinction. It is possibly the case when the law sets a minimum age for entry into the armed forces, where retirement takes place early, and youth and excellence of physical condition are requirements for doing a good job in the field for the most time possible.

Discriminating speech does not fit into either perspective. To promote equality in fact, government does not need to criminalize and suppress the thought it dislikes or diverges from. Ensuring that poor or black students have better opportunities in life does not depend on outlawing speech, but rather may be attempted through the adoption of affirmative programs such as support for the family and pregnant woman since prenatal care, breastfeeding control, free enrollment in kindergartens and school meals, permanent qualification of elementary education and, perhaps temporarily, granting scholarships and setting quotas in universities.

It is not indispensable to silence and punish those who have non-egalitarians views of society. Beyond democracy, truth, tolerance, autonomy and equality, there are at least two additional reasons for protecting speech. First, in general, speech contains lower degree of danger compared to actions i. So, there is no need to subject speech to the same rigid controls.

Speech is the kind of human activity most compatible with full liberty. It is not by chance that most civil and criminal offenses concern to actions, not speech, as in the cases of physical assault, bank robbery, kidnapping, attempt to commit murder, speeding, drunk-driving and so on. It is more dangerous firing a weapon toward an adversary than just announcing enmity feelings.

It is more dangerous to regiment guerrillas and set fire to the government headquarters than presenting a lecture on the morality of the Marxism. Therefore, violent actions are usually more problematic than speech. Before actions, the time to react is slight, the chances of defense are reduced, brutality is often physical, material, and evils tend to be intense and, above all, immediate.

Police response requires promptness and perhaps violence. There is no margin for tolerance. Criminal punishment must be strong enough to be exemplary. Here is a set of effects and demands that could hardly apply to something just said or written. According to Edwin Baker , the shrill voice breaking a crystal cup is an aberrant example, and also something that does not even match with the usual notion of what speech means.

The sound shattering the glass is, strictly speaking, pure physical force. Surely, speech is not always inoffensive. However, in most cases, thesis a suitable metaphor. The lesser capacity to produce immediate and irreversible effects is not a final reason for protecting speech. Yet, it helps to justify the difference between actions and speech regarding to the respective legal treatment.

Actions are significantly repressed while speech is significantly protected. Once the potential to injure is lower, punitive interventions are less needed. Tolerance is possible, and, in principle, bad ideas can be counteracted with good ideas. There is time to react through debate and instruction without resorting to relentless methods of force. Using force to counter bad ideas is not just pointless, but also something misplaced. Psychotherapists try to help their patients by talking with them.

Doctors make diagnoses, offer predictions, and recommend treatments. Lawyers give legal advice; financial planners, financial advice. Some of these professionals also do things such as prescribe drugs, perform surgeries, or file court documents that have legal effect.

But much of what they do is speak. Yet the law heavily regulates such speakers. And the law sometimes forbids or compels particular speech by these professionals. Many states, hoping to persuade women not to get abortions, require doctors to say certain things or show certain things to women who are seeking abortions.

When are these laws constitutional? Moreover, if there is a First Amendment exception that allows such regulations of professional-client speech, which professions does it cover? What about, for instance, tour guides, fortunetellers, veterinarians, or diet advisors? Some speech contains information that helps people commit crimes, or get away with committing crimes.

Sometimes this is general information, for instance about how bombs are made, how locks can be picked, how deadly viruses can be created, how technological protections for copyrighted works can be easily evaded, or how a contract killer can get away with his crime.

Sometimes this is specific information, such as the names of crime witnesses that criminals might want to silence, the location of police officers whom criminals might want to avoid, or the names of undercover officers or CIA agents. Indeed, sometimes this can be as familiar as people flashing lights to alert drivers that a police officer is watching; people are occasionally prosecuted for this, because they are helping others get away with speeding.

And sometimes it is said for political purposes, for instance when someone describes how easy it is to evade copyright law or proposed laws prohibiting 3-D printing of guns, in trying to explain why those laws need to be rejected.

Surprisingly, the Supreme Court has never explained when such speech can be restricted. The narrow incitement exception, which deals with speech that aims to persuade people to commit imminent crimes, is not a good fit for speech that, deliberately or not, informs people about how to commit crimes at some point in the future. This too is a field that the Supreme Court will likely have to address in coming decades. Finally, some government agencies, courts, and universities have reasoned that the government may restrict speech that sufficiently offends employees, students, or business patrons based on race, religion, sex, sexual orientation, and the like.

Private employers are paying attention, and restricting such speech by their employees. Universities are enacting speech codes restricting such speech. Even speech in restaurants and other public places, whether put up by the business owner or said by patrons, can lead to liability for the owner.

And even government employers and enterprises generally have broad latitude to control what is said on their property setting aside public universities, which generally have much less such latitude. And that government pressure is subject to First Amendment scrutiny.

This too is something the Supreme Court will have to consider. Historians and political theorists discuss the duel concepts of patriotism and dissent throughout American history.

On June 17, , police caught five men breaking into the Democratic National Committee headquarters at the Watergate complex in…. Amendment 1 Collapse Text Menu 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.

Amendment 1. Freedom of Speech and the Press by Geoffrey R. Stone Edward H. Fixing Free Speech by Geoffrey R. Three issues involving the freedom of speech are most pressing for the future. Money, Politics, and the First Amendment The first pressing issue concerns the regulation of money in the political process. Read the full discussion here. Professional-Client Speech Many professionals serve their clients by speaking.

Stone , Interim Dean and Edward H. Matters of Debate. Podcast Patriotism and Dissent in America. It also guarantees the right of citizens to assemble peaceably and to petition their government. Learn more 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.

Van Orden v. Perry Advocacy of Illegal Action. Schenk v. United States