creative freedom of speech

The Implications of Supreme Court’s 303 Creative Decision Are Already Being Felt

D ays after the Supreme Court handed down their decision in 303 Creative LLC v. Elenis and ruled in favor of a web designer who did not want to service same-sex couples because she says it infringes on her first amendment rights, a hairdresser in the small town of Traverse City, Michigan publicly posted about refusing service to clients who may have different pronouns than what they were assigned at birth.

“If a human identifies as anything other than a man/woman, please seek services at a local pet groomer,” Christine Geiger, the hair salon owner, said in a since-deleted Facebook post. “You are not welcome at this salon. Period.”

The Facebook page for the salon has also been deleted, but critics claim Geiger’s messaging is evidence of the troubling precedent set by 303 Creative.

“[This case is] a green light for people to engage in what was previously understood as discrimination,” said Katherine Franke, Professor of Law and Director of the Center for Gender & Sexuality Law at Columbia University. “People feel that they now are immune from any kind of consequences for engaging in that kind of violent bigoted speech.”

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The ruling comes during a moment rife with uncertainty for LGBTQ+ rights. A May Department of Homeland Security briefing revealed that threats of violence against the queer community have increased within the last year, and nearly 500 anti-LGBTQ bills targeting gender-affirming care and drag have been introduced this legislative session. While many have been faced with temporary injunctions or found unconstitutional, and experts say that 303 Creative does not allow for explicit discrimination, changing attitudes about the LGBTQ+ community over the past year have been troubling.

“It’s not reasonable to interpret 303 Creative to allow that salon to engage in discrimination,” said Sarah Warbelow, the Human Rights Campaign’s Legal Director, “but these are exactly our long founded concerns. Not only for the real discrimination that will be permissible as a result of 303 Creative, but that it will inspire, discriminatory behavior, and really disgusting public discourse about LGBTQ people.”

In throwing out decades of legal precedent that have upheld anti-discrimination policies, legal experts say the case could open the door to more worrisome implications for the future. “It doesn’t eliminate [LGBTQ protections],” Warbelow says, “but it certainly created a crack.”

What was 303 Creative about?

The case was brought forward by Lorie Smith, a web designer who sought a pre enforcement challenge (a legal action filed before a plaintiff engages in conduct that they believe may go against a specific law) saying she was deterred from expanding her graphic design business to offer wedding websites because Colorado’s anti-discrimination law would require her to service queer couples. Smith says she does not condone gay marriages due to Christian beliefs, and she believed the law infringed on her rights.

By a 6-to-3 vote, the Supreme Court agreed, though not based on religious freedom protections, but rather free speech. The majority opinion found that because Smith’s website included text that would be customized to tell her client’s love story, it fell under the creator’s expression and therefore under the definition of “pure speech.”

“In this case, Colorado seeks to force an individual to speak in ways that align with its views but defy her conscience about a matter of major significance. The First Amendment envisions the United States as a rich and complex place where all persons are free to think and speak as they wish, not as the government demands,” Justice Neil Gorsuch wrote.

What are the implications of this case?

Legal experts like Rutgers law professor Katie Eyer says that the case was “decided on relatively narrow grounds” and “has emboldened much broader claims in the lower courts and among others who might wish to discriminate.”

In other words, the Court found that Smith had a broad “free speech” right that did not require her to follow Colorado anti-discrimination law, “but they also provided no limiting provisions on that right,” Franke says. That means that lower courts do not have a precise definition of “expressive activity” that would help decipher the types of businesses that are exempt from adhering to anti-discrimination standards. Experts expect increased litigation seeking to expand the category of expressive speech from websites to other creative activities, like baking a cake, though the exact way this plays out is yet to be seen.

“There’s also nothing in the opinion, that limits this right only to people who object to same sex marriage,” Franke adds. To be clear, the precedent set by 303 Creative would not allow the Michigan hairdresser to deny service to someone solely based on their gender or sexuality as cutting hair does not constitute speech.

But experts do question whether the ruling would expand to allow a web designer like Smith to deny servicing an interfaith couple, or one of a different religion.

What is even more troubling, Eyer adds, is that much of the clarification surrounding what qualifies as speech exempt from anti-discrimination laws will be decided in the lower courts. “This trajectory has really emboldened would-be discriminators to make even broader arguments about where they are entitled to discriminate,” she says. But that won’t change the lived realities of Americans who belong to protected groups. “Fundamentally, what any group that’s protected by anti-discrimination law wants, even if they win a lawsuit, is not to experience discrimination.”

Looking ahead

Attorneys are already looking to decipher whether 303 Creative allows other businesses or entities to refuse services to people based on the decision.

The Becket Fund for Religious Liberty, for instance, is challenging two court cases: Billard v. Diocese of Charlotte— in which a gay substitute teacher who was fired after revealing his sexuality online successfully sued the school for discrimination—and the similar Fitzgerald v. Roncalli High School and Archdiocese of Indianapolis, per the Washington Post .

Attorneys representing the dioceses argue that hiring decisions should qualify as protected free speech. “If a for-profit business gets constitutional protection when deciding what services to sell [to] the general public, then, of course, a non-profit religious school gets constitutional protection when deciding who is religiously qualified to teach and embody the faith at a religious school,” Luke Goodrich, Vice President and Senior Counsel at The Becket Fund, told TIME in an email statement.

Experts TIME spoke to say that these cases do not have strong legal backing because the Court explicitly said the ruling did not apply to employment discrimination, but other cases like Braidwood Management Inc. v. Becerra could set a new precedent. In June, the Fifth Circuit Court of Appeals ruled in favor of Braidwood Management Inc, a Houston company that said that federal anti-discrimination laws do not apply to them because their religion dictates that people should be cisgender and heterosexual. Franke says that this case relates more to religious freedom than free speech, but the potential implications of this ruling could be troubling. That case may reach the Supreme Court in 2024, according to a case briefing from Columbia Law School.

The Texas Supreme Court also agreed to hear oral arguments related to a lawsuit by a Texas judge who first made headlines in 2019 when she filed a suit claiming that giving out marriage licenses to queer couples infringed on her religious freedom. Attorneys argue that 303 Creative is now applicable in the suit.

Other cases like Klein v. Oregon Bureau of Labor and Industries —where a bakery refused to sell a wedding cake to a same-sex couple—will also be remanded for further consideration given the recent Supreme Court ruling to see if the creation of wedding cakes constitutes commercial speech in the same way Smith’s website does.

Those decisions could continue to pushback against previous legal understandings of equal protections.

“You would think that this would be a time when we express a strong American value of either tolerance or inclusion for all people in our society…but they’re doing just the opposite,” Franke says. “This is a brand new way of understanding the Constitution. Some rights are first tier” religious liberty, free speech, gun rights. And other rights, yes, you have them, but they’re second tier rights: LGBT equality, sex based equality, reproductive rights, and public health and safety. And when those rights come into conflict with first tier rights, they have to yield.”

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• LII Supreme Court Bulletin

303 Creative LLC v. Elenis

LII note: The U.S. Supreme Court has now decided 303 Creative LLC v. Elenis .

• civil rights
• First Amendment
• freedom of speech
• discrimination

Issues 

Does a public accommodation law violate the Free Speech Clause of the First Amendment when it compels an artist to create custom designs that go against her beliefs?

This case asks the Supreme Court to balance public accommodation anti-discrimination laws and First Amendment rights. The Colorado Anti-Discrimination Act (“CADA”) limits a public accommodation’s ability to refuse services to a customer based on their identity, such as sexual orientation. 303 Creative LLC and its owner Lorie Smith argue that CADA violates their First Amendment rights to free artistic expression and religious belief. Respondent Aubrey Elenis, Director of the Colorado Civil Rights Division, counters that CADA regulates discriminatory commerce, not speech, and thus does not violate 303 Creative LLC’s First Amendment rights. The outcome of this case has heavy implications for LGBTQ+ rights, freedom of speech and religion, and creative expression.

Questions as Framed for the Court by the Parties 

Whether applying a public-accommodation law to compel an artist to speak or stay silent violates the free speech clause of the First Amendment.

Facts 

Colorado's Anti-Discrimination Act (“CADA”) limits a place of public accommodation’s ability to refuse services to a customer based on their identity. 303 Creative LLC v. Elenis at 2. Under CADA, a place of public accommodation includes “any place of business engaged in any sales to the public and any place offering services, facilities, privileges, advantages, or accommodations to the public.” Id. In particular, the Accommodation Clause prevents a public accommodation from “directly or indirectly” refusing services “to an individual or a group” on account of their sexual orientation. Id. CADA’s Communication Clause prevents a public accommodation from “directly or indirectly” publishing a communication that suggests that their full range of “goods, services, facilities, privileges, advantages, or accommodations” will be refused to a customer on account of their sexual orientation. Id.

Petitioner 303 Creative LLC (“303 Creative”) is a for-profit, graphic and website design company owned by Petitioner Lorie Smith (“Smith”), its founder and sole member-owner. Id. at 4. 303 Creative does not currently offer wedding-related services, but Smith intends to do so in the future. Id. Smith is willing to work with all people regardless of their sexual orientation and is also generally willing to create designs or websites for LGBTQ+ customers. Id. However, Smith genuinely believes that same-sex marriages conflict with God’s will. Id. Keeping in line with her religious beliefs, Smith does not plan on offering wedding-related services for same-sex weddings, regardless of who requests the service. Id.

Smith intends to publish a statement on 303 Creative’s business website explaining Smith’s religious objections to same-sex marriage. Id. Smith has not yet posted the proposed statement, nor does 303 Creative currently offer wedding-related services, because Smith does not wish to violate CADA. Id. at 6. Smith brought a pre-enforcement challenge to CADA in the United States District Court for the District of Colorado , alleging that its Accommodation and Communication Clauses violate the Free Speech and Free Exercise Clauses of the First Amendment. Id. Respondent Aubrey Elenis, Director of the Colorado Civil Rights Division (“the Director”), moved to dismiss Smith’s complaint . Id.

At a motion hearing, the parties agreed that the case should be resolved through summary judgment , as there is no dispute as to the facts, but only as to the law. After completing summary judgment briefing, the district court found that Smith only established standing to challenge CADA’s Communication Clause, not the Accommodation Clause. Id. Following the Supreme Court’s ruling in Masterpiece Cakeshop, LTD. v. Colorado Civil Rights Commission , the district court denied Smith’s summary judgment motion regarding CADA’s Communication Clause. Id. at 6–7. The district court further ruled that Smith needed to show cause as to why final judgment should not be granted in favor of the Director. Id. at 7.

After additional briefing, the district court ruled in favor of the Director on the motion for summary judgment. Id. Smith timely appealed the district court’s final judgment. Id.

On appeal, the United States Court of Appeals for the Tenth Circuit found that Smith had standing to challenge both the Accommodation Clause and Communication Clause. Brief for Petitioners , 303 Creative LLC and Lorie Smith, at 10. However, the Tenth Circuit ultimately affirmed the district court’s decision granting summary judgment in favor of the Director. Elenis at 47.

The Supreme Court granted Smith certiorari on February 22, 2022. Brief for Petitioners at 1.

Analysis 

Regulation of speech or conduct.

Smith argues that the enforcement of CADA against artists like her violates the Free Speech Clause of the First Amendment by compelling her to speak against her beliefs. Brief for Petitioners , 303 Creative LLC and Lorie Smith at 15. Smith contends that, under Hurley v. Irish-American, Gay, Lesbian, and Bisexual Group of Boston, Inc. , the Free Speech Clause is violated if the forced accommodation involves a form of expression and the complaining speaker’s own message was affected by the speech they were forced to accommodate. Id. at 17–18. Smith posits that her custom wedding websites exist as pure speech because their individual components, that is, the printed word, pictures, drawings, etc., are forms of expression. Id. at 19. Smith also argues that her websites are expressive in nature because they express the unique moments of a couple’s love story and their plans for their future. Id. Smith contends that her own message is affected by CADA’s Accommodation Clause because it compels her to create speech that she otherwise would not make because it conflicts with her sincerely held religious beliefs. Id. at 20. Smith argues that the Accommodation Clause changes her message by forcing her to create speech celebrating same-sex marriage, which she deeply disagrees with, making the enforcement of CADA against her a constitutional violation. Id. at 23.

Smith further asserts that CADA compels speech, not conduct. Id. at 24. Smith contends that CADA makes speech itself the public accommodation and forces Smith to speak against her beliefs. Id. Smith argues that her websites are pure speech and not commercial conduct that can be regulated in compliance with the First Amendment. Id. at 24–26. Smith maintains that CADA does not regulate speech incidental to conduct, because the Accommodation Clause forces her to speak when she otherwise would remain silent, without any actual regulation of her conduct. Id. at 28. Smith argues that CADA regulates her speech, and not her clients’ speech, because she personally and actively creates, designs, and publishes her websites and designs. Id. at 29.

In response, the Director argues that the Accommodation Clause regulates discriminatory sales practices, not speech. Brief for Respondents , Aubrey Elenis et al. at 12. The Director contends that Smith’s reliance on Hurley is misplaced because Hurley dealt with the unique application of public accommodations law to a private parade organizer’s decision on which messages to include in their parade, not business practices, as is in this case . Id. at 17. The Director argues that the conduct that CADA targets (i.e., selling goods and services to the public) is not a form of expressive conduct. Id. at 20. The Director posits that by enforcing CADA, the state neither seeks to force Smith to recite state messages or speech, nor does it seek to alter or change Smith’s own message. Id at 19 . The Director contends that CADA aims at ensuring equal access to public accommodations and leaves the public accommodation free to choose whatever ideologies it wishes to present. Id. The Director asserts that Smith retains control over her services and what she may sell to the public; CADA only affects Smith’s ability to refuse those services and sales to same-sex couples that she would offer to heterosexual couples. Id. 19–20.

The Director further maintains that the Accommodation Clause focuses only on commercial conduct and is triggered once someone decides to offer services to the public, regardless of what those services are. Id. The Director argues that several Supreme Court decisions have made clear that public accommodations law can regulate conduct when it mandates equal access to goods and services, “even if the businesses engage in activities protected by the First Amendment.” Id. at 13. The Director posits that requiring businesses to comply with equal access does not turn a regulation of conduct into a burden on their expression, even if those businesses provide custom services. Id. at 14.

REGULATION OF CONTENT AND VIEWPOINT

Smith argues that not only does CADA compel speech, but it also does so based on the speaker’s content and viewpoint . Brief for Petitioners at 31. Smith contends that the Accommodation Clause forces her to create websites that celebrate same-sex marriage, which necessarily alters the content of her speech. Id. at 31–32. Smith posits that her choice to discuss a specific topic, namely opposite-sex marriage, serves as a trigger for the enforcement of CADA against her, and therefore CADA selectively penalizes some content. Id. Smith argues that CADA only grants access to her accommodation to those who disagree with the message she wishes to express, further targeting her viewpoint. Id. at 33. Smith maintains that the Communication Clause also regulates her speech based on content and viewpoint, because it only applies to speech on certain topics. Id. at 34.

The Director counters that Smith may create websites and designs expressing whatever message she wants to communicate; all that the Accommodation Clause requires is that she offers her services to the public regardless of her customer’s sexual orientation. Brief for Respondents at 15. The Director maintains that CADA leaves the content of Smith’s goods and services unregulated and completely within her control because she may choose the content and design of her websites without interference. Id. The Director also argues that the Communication Clause prohibits solely commercial speech that facilitates illegal discrimination. Id. at 44. The Director asserts that the Communication Clause does not prevent Smith from expressing her opposition to same-sex marriage—instead, CADA simply regulates speech that denies equal service, in violation of the law, based on a customer’s protected characteristic. Id. at 44–45. The Director contends that Smith is still able to express her beliefs concerning same-sex marriage while complying with her legal obligation to provide goods and services equally. Id. at 45.

STANDARD OF REVIEW AND STATE INTERESTS

Smith argues that because CADA compels speech and discriminates based on content and viewpoint, thus implicating a fundamental right , the law must satisfy strict scrutiny . Brief for Petitioners at 36. To pass strict scrutiny, Smith contends that the Director must prove that enforcing CADA against artists like Smith furthers a compelling government interest, and the enforcement is narrowly tailored to achieving that interest. Id. Smith maintains that the Director’s interests in eliminating discrimination and maintaining access to goods and services are too broad to serve as compelling interests. Id. at 37. Smith argues that the Director cannot show that Smith’s speech will undermine the state’s interest in combating discrimination because Smith “does not discriminate against anyone” and “will happily serve everyone” regardless of their sexual orientation. Id. Smith argues that allowing her to speak does not affect access to goods and services, because there are many designers in Colorado that will convey the messages that Smith refuses to convey. Id.

Smith further posits that the Director has multiple alternative options to achieve their interests, which proves that the enforcement of CADA is not narrowly tailored to that end. Id. at 47. Smith maintains that the Director could enforce CADA so as to allow speakers who serve all people to refuse certain projects based on their message, carve out textual exemptions for artists who decline projects based on their message, or narrow the definition of public accommodation under CADA. Id. at 47–48. Smith argues that the Director fails to show why less-intrusive methods such as these will fail and only speech compulsion will succeed. Id. at 49.

The Director responds that the state has a compelling interest in protecting equal access and equal dignity of all customers, which is supported by American history and tradition. Brief for Respondents at 35–36. The Director contends that the state’s interest in ensuring equal access is compelling because the denial of services based on identity has the effect of demoting someone to a second-class citizen. Id. at 39. The Director asserts that there are no less restrictive alternative means available to CADA. Id. at 40. The Director argues that discretionary exemptions suggested by Smith that allow businesses to deny equal access would swallow the state’s interest in providing equal access as a whole. Id. at 41. The Director also argues that Smith failed to show how an exemption to CADA for artists is feasible and that such an exemption has no limiting principle. Id. at 30–31.

The Director further contends that the correct level of scrutiny to apply is intermediate scrutiny because any burden on Smith’s speech is incidental to the Accommodation Clause’s regulation of conduct. Id. at 25. The Director posits that if there is a burden on Smith’s speech, that is simply the effect of CADA, rather than the law’s intent, and therefore intermediate scrutiny is more appropriate. Id. The Director maintains that applying intermediate scrutiny to a law that is not aimed at suppression, but that unintentionally burdens speech, is in line with Supreme Court cases upholding similar public accommodation laws, such as Ward v. Rock Against Racism and United States v. Albertini . Id. at 26.

Discussion 

Principles of freedom under the first amendment.

Colorado state legislators (“State Legislators”), in support of Smith, argue that forcing individuals to express messages that they disagree with violates the fundamental rule of protection under the First Amendment. Brief of Amici Curiae Colorado State Legislators (“State Legislators” ) , in Support of Petitioners at 11. The State Legislators argue that nondiscriminatory laws such as CADA impose speech conditions that substantially interfere with speakers’ autonomy and freedom of speech. Id. at 9. The State Legislators further contend that enforcing such laws often weaponizes state action to eliminate a constitutional constraint, the Free Speech Clause. Id. at 12.

Six First Amendment Scholars (“Scholars”), in support of the Director, counter that allowing expressive freedom to supersede other laws of general applicability would jeopardize the very freedom the First Amendment aims to protect. Brief of Amici Curiae First Amendment Scholars (“Scholars” ) , in Support of Respondent at 18. The Scholars contend that allowing discrimination on the basis of the First Amendment in the commercial context inevitably permits subjective invalidation of general laws. Id. at 19. The Scholars argue that such distorted effects dilute free speech protection and weaken the First Amendment’s goal of “furthering the free and robust exchange of ideas” by creating unacceptable applications of the rule. Id.

SOCIETAL EFFECT OF PUBLIC ACCOMMODATION LAWS

The State Legislators, in support of Smith, argue that recognizing a compelling state interest in enforcing CADA would allow the government to subjectively infringe on speakers’ artistic expression. Brief of State Legislators at 16 . The State Legislators claim that the government wielding its enforcing power will inevitably lead to hostility and inequity toward religious viewpoints and identities. Id. at 18. State Legislators further purport that government action censuring speech protected under the First Amendment not only facilitate policies contrary to speakers’ conscience but also to their personal identities. Id. at 20.

Professor Dale Carpenter and others (“Professor Carpenter”), in support of Smith, argues that the government may ensure equal access to goods and services even if the Court recognizes Smith’s First Amendment right to decline to create a custom service. Brief of Amici Curiae Prof. Dale Carpenter et al. (“ Professor Carpenter ” ) , in Support of Petitioners at 18. Professor Carpenter distinguishes the bulk of goods and services, which people shall generally have access to, from expressive goods and services such as Smith’s, which he contends are protected under the First Amendment. Id. Professor Carpenter further notes that, although the Court has previously recognized a state interest in preventing entities from leveraging the monopoly of their services to silence other speakers, merely characterizing a business as a monopoly is not sufficient to deny that business protections under the First Amendment. Id. at 20.

The National Women ’ s Law Center (“NWLC”) and thirty-five additional organizations, in support of the Director, counter that public accommodation laws such as CADA guard against real-world harms caused by excluding certain groups from public accommodations. Brief of Amici Curiae The National Women’s Law Center et al. (“NWLC” ) , in Support of Respondent at 12. NWLC argues that these laws reflect society’s recognition of discrimination and perpetuated economic and social inequality. Id. at 6. NWLC notes that discriminating against people in public accommodations stigmatizes them and deprives them of individual dignity. Id. at 13.

Local governments and mayors (collectively “Local Governments”), in support of the Director, claim that enforcing CADA allows local communities to become diverse and pluralistic. Brief of Amici Curiae Local Governments and Mayors (“Local Governments”) , in Support of Respondent at 5. Local Governments contend that discrimination not only impedes individuals who face discrimination from accessing goods and services, but also harms their well-being and economic security. Id. at 6. Local Governments argue that protections under CADA ensure an equal opportunity to access services and earn a living, thereby allowing individuals who are discriminated against to fully participate in public life. Id. at 4. Furthermore, Local Governments argue that CADA would benefit society as a whole by improving business performance and the economy due to increased economic activities of the individuals who experience discrimination. Id. at 14.

Conclusion 

Written by:.

Gigi Scerbo

Acknowledgments 

The authors would like to thank Professor Nelson Tebbe for his guidance and insights into this case.

Additional Resources 

• Peter Brown, Can a Web Designer Refuse to Build a Gay Marriage Website ? , New York Law Journal (Nov. 7, 2022).
• Samuel E. Ferguson, Mixed Messaging: Previewing 303 Creative and its Place in Current Free Speech Jurisprudence , Minnesota Law Review (Nov. 1, 2022).
• Christopher Jackson, Supreme Court Poised to Issue Blockbuster Decision on Free Speech , JD Supra (Nov. 17, 2022).
• Michael Smith, Column: Supreme Court Case a Unique Conflict of First, 14th Amendments , The Pilot (Nov. 5, 2022).

Web Designer’s Free Speech Supreme Court Victory Is a Win for All

In 303 Creative v. Elenis , the US Supreme Court prohibited Colorado from forcing Lorie Smith to create a message that contradicted her beliefs. Some progressives have criticized the decision—not because of the legal principles it enforced, but because of Smith’s specific beliefs at issue.

The court ruled the government may not compel Smith to endorse same-sex marriage. But it did so because of fundamental free speech tenets that benefit all of us, regardless of our views on same-sex marriage or any other issue.

Our First Amendment operates under a Golden Rule: “Do unto speech you oppose as to speech you support.” If we don’t protect the speech we loathe, we can’t protect the speech we love. The 303 Creative decision reaffirms this bedrock principle. And, following a long line of cases, it rejects government efforts to compel speech or coerce ideological conformity.

In 1943, the American Civil Liberties Union represented Jehovah’s Witnesses in West Virginia State Board of Education v. Barnette . The state sought to compel schoolchildren to salute the American flag to instill national unity. But, even at the height of World War II, the court held that the First Amendment barred this compelled speech, declaring that “if there is any fixed star in our constitutional constellation, it is that no official … can prescribe what shall be orthodox” or “force citizens to confess by word or act their faith therein.”

That fixed star protects all views, whether popular and majoritarian or disfavored and contrarian. And, as Barnette said, it shields “the right to differ as to things that touch the heart of the existing order.” After all, today’s heresies are sometimes tomorrow’s orthodoxies.

Colorado acknowledged that Smith, a website and graphic designer, customizes each website she creates—combining traditional art with technical elements to express herself through online works of art. Smith wants to create custom wedding websites consistent with her belief that marriage is the union of husband and wife.

Colorado also agreed Smith has always been intentional about ensuring the messages she creates align with her personal values. She declines to create messages that promote certain political views or that disparage other people, including those who identify as LGBTQ. The messages she will not express remain constant, no matter who asks her.

As Colorado stipulated, Smith is “willing to work with all people regardless of … sexual orientation.” Her decisions about what to create turn on the message she’s communicating, never the person requesting it. That means Smith designs websites for everyone, including her LGBTQ clients, so long as the message she is asked to create is consistent with her beliefs.

Colorado additionally admitted that thousands of other website designers create custom websites. And the lower appellate court found same-sex couples have no problem accessing websites to celebrate their weddings. Beyond conceding these critical facts, Colorado agreed with the central constitutional principle at stake: The government may not “force[] a speaker to convey the government’s ideological message.”

Given these concessions, you might wonder why this case went all the way to the Supreme Court. Colorado still tried to commandeer Smith’s speech, demanding she create and publish custom websites celebrating a view of marriage that violated her beliefs. Back in Barnette , the Supreme Court condemned this type of compulsion as an invasion of “the sphere of intellect and spirit.”

It’s also antithetical to our democratic form of government. As the appellate court put it, Colorado’s goal was the shockingly anti-democratic one of “excising certain ideas or viewpoints” the state disliked “from the public dialogue.”

Fortunately, in 303 Creative , the Supreme Court rejected Colorado’s unconstitutional efforts, declaring it violated the First Amendment by “us[ing] its law to compel” Smith “to create speech she does not believe.” The court confirmed “the Constitution’s commitment to the freedom of speech means all of us will encounter ideas we consider unattractive, misguided, or even hurtful. But tolerance, not coercion, is our Nation’s answer.”

Consistent with the free speech Golden Rule, this decision ensures that an LGBTQ website designer can’t be forced to create a website criticizing same-sex marriage. But this case also protects speech far beyond the marriage context. A Democratic artist need not design posters promoting the Republican Party, nor must a videographer who supports Roe v. Wade film a pro-life rally.

Consider the consequences if the Supreme Court had ruled the opposite way. The court framed the legal question the case posed as “whether applying a public accommodation law to compel an artist to speak or stay silent violates the Free Speech Clause of the First Amendment.”

The court’s ruling safeguards free speech rights while ensuring nondiscrimination laws remain firmly in place. States may—and should—continue to outlaw denials of goods or services based on a protected classification.

As Colorado itself stipulated, Smith’s websites constitute expression that she creates—she selects her projects based on the message, not who requests it. The Supreme Court rightly re-affirmed that the government may not compel any of us to say things we don’t believe.

That’s the beauty of free speech. It allows all of us to discuss our common ground, debate our differences, and pursue our varying visions of truth and justice free from government compulsion.

The case is 303 Creative LLC v. Elenis , US, No. 21-476, 6/30/23.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Kristen Waggoner is CEO and president of Alliance Defending Freedom and argued 303 Creative v. Elenis before the US Supreme Court on behalf of Lorie Smith.

Nadine Strossen is a past president of the American Civil Liberties Union and senior fellow at the Foundation for Individual Rights and Expression.

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Freedom of Speech

[ Editor’s Note: The following new entry by Jeffrey W. Howard replaces the former entry on this topic by the previous author. ]

Human beings have significant interests in communicating what they think to others, and in listening to what others have to say. These interests make it difficult to justify coercive restrictions on people’s communications, plausibly grounding a moral right to speak (and listen) to others that is properly protected by law. That there ought to be such legal protections for speech is uncontroversial among political and legal philosophers. But disagreement arises when we turn to the details. What are the interests or values that justify this presumption against restricting speech? And what, if anything, counts as an adequate justification for overcoming the presumption? This entry is chiefly concerned with exploring the philosophical literature on these questions.

The entry begins by distinguishing different ideas to which the term “freedom of speech” can refer. It then reviews the variety of concerns taken to justify freedom of speech. Next, the entry considers the proper limits of freedom of speech, cataloging different views on when and why restrictions on communication can be morally justified, and what considerations are relevant when evaluating restrictions. Finally, it considers the role of speech intermediaries in a philosophical analysis of freedom of speech, with special attention to internet platforms.

1. What is Freedom of Speech?

2.1 listener theories, 2.2 speaker theories, 2.3 democracy theories, 2.4 thinker theories, 2.5 toleration theories, 2.6 instrumental theories: political abuse and slippery slopes, 2.7 free speech skepticism, 3.1 absoluteness, coverage, and protection, 3.2 the limits of free speech: external constraints, 3.3 the limits of free speech: internal constraints, 3.4 proportionality: chilling effects and political abuse, 3.5 necessity: the counter-speech alternative, 4. the future of free speech theory: platform ethics, other internet resources, related entries.

In the philosophical literature, the terms “freedom of speech”, “free speech”, “freedom of expression”, and “freedom of communication” are mostly used equivalently. This entry will follow that convention, notwithstanding the fact that these formulations evoke subtly different phenomena. For example, it is widely understood that artistic expressions, such as dancing and painting, fall within the ambit of this freedom, even though they don’t straightforwardly seem to qualify as speech , which intuitively connotes some kind of linguistic utterance (see Tushnet, Chen, & Blocher 2017 for discussion). Still, they plainly qualify as communicative activity, conveying some kind of message, however vague or open to interpretation it may be.

Yet the extension of “free speech” is not fruitfully specified through conceptual analysis alone. The quest to distinguish speech from conduct, for the purpose of excluding the latter from protection, is notoriously thorny (Fish 1994: 106), despite some notable attempts (such as Greenawalt 1989: 58ff). As John Hart Ely writes concerning Vietnam War protesters who incinerated their draft cards, such activity is “100% action and 100% expression” (1975: 1495). It is only once we understand why we should care about free speech in the first place—the values it instantiates or serves—that we can evaluate whether a law banning the burning of draft cards (or whatever else) violates free speech. It is the task of a normative conception of free speech to offer an account of the values at stake, which in turn can illuminate the kinds of activities wherein those values are realized, and the kinds of restrictions that manifest hostility to those values. For example, if free speech is justified by the value of respecting citizens’ prerogative to hear many points of view and to make up their own minds, then banning the burning of draft cards to limit the views to which citizens will be exposed is manifestly incompatible with that purpose. If, in contrast, such activity is banned as part of a generally applied ordinance restricting fires in public, it would likely raise no free-speech concerns. (For a recent analysis of this issue, see Kramer 2021: 25ff).

Accordingly, the next section discusses different conceptions of free speech that arise in the philosophical literature, each oriented to some underlying moral or political value. Before turning to the discussion of those conceptions, some further preliminary distinctions will be useful.

First, we can distinguish between the morality of free speech and the law of free speech. In political philosophy, one standard approach is to theorize free speech as a requirement of morality, tracing the implications of such a theory for law and policy. Note that while this is the order of justification, it need not be the order of investigation; it is perfectly sensible to begin by studying an existing legal protection for speech (such as the First Amendment in the U.S.) and then asking what could justify such a protection (or something like it).

But of course morality and law can diverge. The most obvious way they can diverge is when the law is unjust. Existing legal protections for speech, embodied in the positive law of particular jurisdictions, may be misguided in various ways. In other words, a justified legal right to free speech, and the actual legal right to free speech in the positive law of a particular jurisdiction, can come apart. In some cases, positive legal rights might protect too little speech. For example, some jurisdictions’ speech laws make exceptions for blasphemy, such that criminalizing blasphemy does not breach the legal right to free speech within that legal system. But clearly one could argue that a justified legal right to free speech would not include any such exception. In other cases, positive legal rights might perhaps protect too much speech. Consider the fact that, as a matter of U.S. constitutional precedent, the First Amendment broadly protects speech that expresses or incites racial or religious hatred. Plainly we could agree that this is so as a matter of positive law while disagreeing about whether it ought to be so. (This is most straightforwardly true if we are legal positivists. These distinctions are muddied by moralistic theories of constitutional interpretation, which enjoin us to interpret positive legal rights in a constitutional text partly through the prism of our favorite normative political theory; see Dworkin 1996.)

Second, we can distinguish rights-based theories of free speech from non-rights-based theories. For many liberals, the legal right to free speech is justified by appealing to an underlying moral right to free speech, understood as a natural right held by all persons. (Some use the term human right equivalently—e.g., Alexander 2005—though the appropriate usage of that term is contested.) The operative notion of a moral right here is that of a claim-right (to invoke the influential analysis of Hohfeld 1917); it thereby correlates to moral duties held by others (paradigmatically, the state) to respect or protect the right. Such a right is natural in that it exerts normative force independently of whether anyone thinks it does, and regardless of whether it is codified into the law. A tyrannical state that imprisons dissidents acts unjustly, violating moral rights, even if there is no legal right to freedom of expression in its legal system.

For others, the underlying moral justification for free speech law need not come in the form of a natural moral right. For example, consequentialists might favor a legal right to free speech (on, e.g., welfare-maximizing grounds) without thinking that it tracks any underlying natural right. Or consider democratic theorists who have defended legal protections for free speech as central to democracy. Such theorists may think there is an underlying natural moral right to free speech, but they need not (especially if they hold an instrumental justification for democracy). Or consider deontologists who have argued that free speech functions as a kind of side-constraint on legitimate state action, requiring that the state always justify its decisions in a manner that respects citizens’ autonomy (Scanlon 1972). This theory does not cast free speech as a right, but rather as a principle that forbids the creation of laws that restrict speech on certain grounds. In the Hohfeldian analysis (Hohfeld 1917), such a principle may be understood as an immunity rather than a claim-right (Scanlon 2013: 402). Finally, some “minimalists” (to use a designation in Cohen 1993) favor legal protection for speech principally in response to government malice, corruption, and incompetence (see Schauer 1982; Epstein 1992; Leiter 2016). Such theorists need not recognize any fundamental moral right, either.

Third, among those who do ground free speech in a natural moral right, there is scope for disagreement about how tightly the law should mirror that right (as with any right; see Buchanan 2013). It is an open question what the precise legal codification of the moral right to free speech should involve. A justified legal right to freedom of speech may not mirror the precise contours of the natural moral right to freedom of speech. A raft of instrumental concerns enters the downstream analysis of what any justified legal right should look like; hence a defensible legal right to free speech may protect more speech (or indeed less speech) than the underlying moral right that justifies it. For example, even if the moral right to free speech does not protect so-called hate speech, such speech may still merit legal protection in the final analysis (say, because it would be too risky to entrust states with the power to limit those communications).

2. Justifying Free Speech

I will now examine several of the morally significant considerations taken to justify freedom of expression. Note that while many theorists have built whole conceptions of free speech out of a single interest or value alone, pluralism in this domain remains an option. It may well be that a plurality of interests serves to justify freedom of expression, properly understood (see, influentially, Emerson 1970 and Cohen 1993).

Suppose a state bans certain books on the grounds that it does not want us to hear the messages or arguments contained within them. Such censorship seems to involve some kind of insult or disrespect to citizens—treating us like children instead of adults who have a right to make up our own minds. This insight is fundamental in the free speech tradition. On this view, the state wrongs citizens by arrogating to itself the authority to decide what messages they ought to hear. That is so even if the state thinks that the speech will cause harm. As one author puts it,

the government may not suppress speech on the ground that the speech is likely to persuade people to do something that the government considers harmful. (Strauss 1991: 335)

Why are restrictions on persuasive speech objectionable? For some scholars, the relevant wrong here is a form of disrespect for citizens’ basic capacities (Dworkin 1996: 200; Nagel 2002: 44). For others, the wrong here inheres in a violation of the kind of relationship the state should have with its people: namely, that it should always act from a view of them as autonomous, and so entitled to make up their own minds (Scanlon 1972). It would simply be incompatible with a view of ourselves as autonomous—as authors of our own lives and choices—to grant the state the authority to pre-screen which opinions, arguments, and perspectives we should be allowed to think through, allowing us access only to those of which it approves.

This position is especially well-suited to justify some central doctrines of First Amendment jurisprudence. First, it justifies the claim that freedom of expression especially implicates the purposes with which the state acts. There are all sorts of legitimate reasons why the state might restrict speech (so-called “time, place, and manner” restrictions)—for example, noise curfews in residential neighborhoods, which do not raise serious free speech concerns. Yet when the state restricts speech with the purpose of manipulating the communicative environment and controlling the views to which citizens are exposed, free speech is directly affronted (Rubenfeld 2001; Alexander 2005; Kramer 2021). To be sure, purposes are not all that matter for free speech theory. For example, the chilling effects of otherwise justified speech regulations (discussed below) are seldom intended. But they undoubtedly matter.

Second, this view justifies the related doctrines of content neutrality and viewpoint neutrality (see G. Stone 1983 and 1987) . Content neutrality is violated when the state bans discussion of certain topics (“no discussion of abortion”), whereas viewpoint neutrality is violated when the state bans advocacy of certain views (“no pro-choice views may be expressed”). Both affront free speech, though viewpoint-discrimination is especially egregious and so even harder to justify. While listener autonomy theories are not the only theories that can ground these commitments, they are in a strong position to account for their plausibility. Note that while these doctrines are central to the American approach to free speech, they are less central to other states’ jurisprudence (see A. Stone 2017).

Third, this approach helps us see that free speech is potentially implicated whenever the state seeks to control our thoughts and the processes through which we form beliefs. Consider an attempt to ban Marx’s Capital . As Marx is deceased, he is probably not wronged through such censorship. But even if one held idiosyncratic views about posthumous rights, such that Marx were wronged, it would be curious to think this was the central objection to such censorship. Those with the gravest complaint would be the living adults who have the prerogative to read the book and make up their own minds about it. Indeed free speech may even be implicated if the state banned watching sunsets or playing video games on the grounds that is disapproved of the thoughts to which such experiences might give rise (Alexander 2005: 8–9; Kramer 2021: 22).

These arguments emphasize the noninstrumental imperative of respecting listener autonomy. But there is an instrumental version of the view. Our autonomy interests are not merely respected by free speech; they are promoted by an environment in which we learn what others have to say. Our interests in access to information is served by exposure to a wide range of viewpoints about both empirical and normative issues (Cohen 1993: 229), which help us reflect on what goals to choose and how best to pursue them. These informational interests are monumental. As Raz suggests, if we had to choose whether to express our own views on some question, or listen to the rest of humanity’s views on that question, we would choose the latter; it is our interest as listeners in the public good of a vibrant public discourse that, he thinks, centrally justifies free speech (1991).

Such an interest in acquiring justified beliefs, or in accessing truth, can be defended as part of a fully consequentialist political philosophy. J.S. Mill famously defends free speech instrumentally, appealing to its epistemic benefits in On Liberty . Mill believes that, given our fallibility, we should routinely keep an open mind as to whether a seemingly false view may actually be true, or at least contain some valuable grain of truth. And even where a proposition is manifestly false, there is value in allowing its expression so that we can better apprehend why we take it to be false (1859: chapter 2), enabled through discursive conflict (cf. Simpson 2021). Mill’s argument focuses especially on the benefits to audiences:

It is is not on the impassioned partisan, it is on the calmer and more disinterested bystander, that this collision of opinions works its salutary effect. (1859: chapter 2, p. 94)

These views are sometimes associated with the idea of a “marketplace of ideas”, whereby the open clash of views inevitably leads to the correct ones winning out in debate. Few in the contemporary literature holds such a strong teleological thesis about the consequences of unrestricted debate (e.g., see Brietzke 1997; cf. Volokh 2011). Much evidence from behavioral economics and social psychology, as well as insights about epistemic injustice from feminist epistemology, strongly suggest that human beings’ rational powers are seriously limited. Smug confidence in the marketplace of ideas belies this. Yet it is doubtful that Mill held such a strong teleological thesis (Gordon 1997). Mill’s point was not that unrestricted discussion necessarily leads people to acquire the truth. Rather, it is simply the best mechanism available for ascertaining the truth, relative to alternatives in which some arbiter declares what he sees as true and suppresses what he sees as false (see also Leiter 2016).

Note that Mill’s views on free speech in chapter 2 in On Liberty are not simply the application of the general liberty principle defended in chapter 1 of that work; his view is not that speech is anodyne and therefore seldom runs afoul of the harm principle. The reason a separate argument is necessary in chapter 2 is precisely that he is carving out a partial qualification of the harm principle for speech (on this issue see Jacobson 2000, Schauer 2011b, and Turner 2014). On Mill’s view, plenty of harmful speech should still be allowed. Imminently dangerous speech, where there is no time for discussion before harm eventuates, may be restricted; but where there is time for discussion, it must be allowed. Hence Mill’s famous example that vociferous criticism of corn dealers as

starvers of the poor…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. (1859: chapter 3, p. 100)

The point is not that such speech is harmless; it’s that the instrumental benefits of permitting its expressions—and exposing its falsehood through public argument—justify the (remaining) costs.

Many authors have unsurprisingly argued that free speech is justified by our interests as speakers . This family of arguments emphasizes the role of speech in the development and exercise of our personal autonomy—our capacity to be the reflective authors of our own lives (Baker 1989; Redish 1982; Rawls 2005). Here an emphasis on freedom of expression is apt; we have an “expressive interest” (Cohen 1993: 224) in declaring our views—about the good life, about justice, about our identity, and about other aspects of the truth as we see it.

Our interests in self-expression may not always depend on the availability of a willing audience; we may have interests simply in shouting from the rooftops to declare who we are and what we believe, regardless of who else hears us. Hence communications to oneself—for example, in a diary or journal—are plausibly protected from interference (Redish 1992: 30–1; Shiffrin 2014: 83, 93; Kramer 2021: 23).

Yet we also have distinctive interests in sharing what we think with others. Part of how we develop our conceptions of the good life, forming judgments about how to live, is precisely through talking through the matter with others. This “deliberative interest” in directly served through opportunities to tell others what we think, so that we can learn from their feedback (Cohen 1993). Such encounters also offer opportunities to persuade others to adopt our views, and indeed to learn through such discussions who else already shares our views (Raz 1991).

Speech also seems like a central way in which we develop our capacities. This, too, is central to J.S. Mill’s defense of free speech, enabling people to explore different perspectives and points of view (1859). Hence it seems that when children engage in speech, to figure out what they think and to use their imagination to try out different ways of being in the world, they are directly engaging this interest. That explains the intuition that children, and not just adults, merit at least some protection under a principle of freedom of speech.

Note that while it is common to refer to speaker autonomy , we could simply refer to speakers’ capacities. Some political liberals hold that an emphasis on autonomy is objectionably Kantian or otherwise perfectionist, valorizing autonomy as a comprehensive moral ideal in a manner that is inappropriate for a liberal state (Cohen 1993: 229; Quong 2011). For such theorists, an undue emphasis on autonomy is incompatible with ideals of liberal neutrality toward different comprehensive conceptions of the good life (though cf. Shiffrin 2014: 81).

If free speech is justified by the importance of our interests in expressing ourselves, this justifies negative duties to refrain from interfering with speakers without adequate justification. Just as with listener theories, a strong presumption against content-based restrictions, and especially against viewpoint discrimination, is a clear requirement of the view. For the state to restrict citizens’ speech on the grounds that it disfavors what they have to say would affront the equal freedom of citizens. Imagine the state were to disallow the expression of Muslim or Jewish views, but allow the expression of Christian views. This would plainly transgress the right to freedom of expression, by valuing certain speakers’ interests in expressing themselves over others.

Many arguments for the right to free speech center on its special significance for democracy (Cohen 1993; Heinze 2016: Heyman 2009; Sunstein 1993; Weinstein 2011; Post 1991, 2009, 2011). It is possible to defend free speech on the noninstrumental ground that it is necessary to respect agents as democratic citizens. To restrict citizens’ speech is to disrespect their status as free and equal moral agents, who have a moral right to debate and decide the law for themselves (Rawls 2005).

Alternatively (or additionally), one can defend free speech on the instrumental ground that free speech promotes democracy, or whatever values democracy is meant to serve. So, for example, suppose the purpose of democracy is the republican one of establishing a state of non-domination between relationally egalitarian citizens; free speech can be defended as promoting that relation (Whitten 2022; Bonotti & Seglow 2022). Or suppose that democracy is valuable because of its role in promoting just outcomes (Arneson 2009) or tending to track those outcomes in a manner than is publicly justifiable (Estlund 2008) or is otherwise epistemically valuable (Landemore 2013).

Perhaps free speech doesn’t merely respect or promote democracy; another framing is that it is constitutive of it (Meiklejohn 1948, 1960; Heinze 2016). As Rawls says: “to restrict or suppress free political speech…always implies at least a partial suspension of democracy” (2005: 254). On this view, to be committed to democracy just is , in part, to be committed to free speech. Deliberative democrats famously contend that voting merely punctuates a larger process defined by a commitment to open deliberation among free and equal citizens (Gutmann & Thompson 2008). Such an unrestricted discussion is marked not by considerations of instrumental rationality and market forces, but rather, as Habermas puts it, “the unforced force of the better argument” (1992 [1996: 37]). One crucial way in which free speech might be constitutive of democracy is if it serves as a legitimation condition . On this view, without a process of open public discourse, the outcomes of the democratic decision-making process lack legitimacy (Dworkin 2009, Brettschneider 2012: 75–78, Cohen 1997, and Heinze 2016).

Those who justify free speech on democratic grounds may view this as a special application of a more general insight. For example, Scanlon’s listener theory (discussed above) contends that the state must always respect its citizens as capable of making up their own minds (1972)—a position with clear democratic implications. Likewise, Baker is adamant that both free speech and democracy are justified by the same underlying value of autonomy (2009). And while Rawls sees the democratic role of free speech as worthy of emphasis, he is clear that free speech is one of several basic liberties that enable the development and exercise of our moral powers: our capacities for a sense of justice and for the rational pursuit a lifeplan (2005). In this way, many theorists see the continuity between free speech and our broader interests as moral agents as a virtue, not a drawback (e.g., Kendrick 2017).

Even so, some democracy theorists hold that democracy has a special role in a theory of free speech, such that political speech in particular merits special protection (for an overview, see Barendt 2005: 154ff). One consequence of such views is that contributions to public discourse on political questions merit greater protection under the law (Sunstein 1993; cf. Cohen 1993: 227; Alexander 2005: 137–8). For some scholars, this may reflect instrumental anxieties about the special danger that the state will restrict the political speech of opponents and dissenters. But for others, an emphasis on political speech seems to reflect a normative claim that such speech is genuinely of greater significance, meriting greater protection, than other kinds of speech.

While conventional in the free speech literature, it is artificial to separate out our interests as speakers, listeners, and democratic citizens. Communication, and the thinking that feeds into it and that it enables, invariably engages our interests and activities across all these capacities. This insight is central to Seana Shiffrin’s groundbreaking thinker-based theory of freedom of speech, which seeks to unify the range of considerations that have informed the traditional theories (2014). Like other theories (e.g., Scanlon 1978, Cohen 1993), Shiffrin’s theory is pluralist in the range of interests it appeals to. But it offers a unifying framework that explains why this range of interests merits protection together.

On Shiffrin’s view, freedom of speech is best understood as encompassing both freedom of communication and freedom of thought, which while logically distinct are mutually reinforcing and interdependent (Shiffrin 2014: 79). Shiffrin’s account involves several profound claims about the relation between communication and thought. A central contention is that “free speech is essential to the development, functioning, and operation of thinkers” (2014: 91). This is, in part, because we must often externalize our ideas to articulate them precisely and hold them at a distance where we can evaluate them (p. 89). It is also because we work out what we think largely by talking it through with others. Such communicative processes may be monological, but they are typically dialogical; speaker and listener interests are thereby mutually engaged in an ongoing manner that cannot be neatly disentangled, as ideas are ping-ponged back and forth. Moreover, such discussions may concern democratic politics—engaging our interests as democratic citizens—but of course they need not. Aesthetics, music, local sports, the existence of God—these all are encompassed (2014: 92–93). Pace prevailing democratic theories,

One’s thoughts about political affairs are intrinsically and ex ante no more and no less central to the human self than thoughts about one’s mortality or one’s friends. (Shiffrin 2014: 93)

The other central aspect of Shiffrin’s view appeals to the necessity of communication for successfully exercising our moral agency. Sincere communication enables us

to share needs, emotions, intentions, convictions, ambitions, desires, fantasies, disappointments, and judgments. Thereby, we are enabled to form and execute complex cooperative plans, to understand one another, to appreciate and negotiate around our differences. (2014: 1)

Without clear and precise communication of the sort that only speech can provide, we cannot cooperate to discharge our collective obligations. Nor can we exercise our normative powers (such as consenting, waiving, or promising). Our moral agency thus depends upon protected channels through which we can relay our sincere thoughts to one another. The central role of free speech is to protect those channels, by ensuring agents are free to share what they are thinking without fear of sanction.

The thinker-based view has wide-ranging normative implications. For example, by emphasizing the continuity of speech and thought (a connection also noted in Macklem 2006 and Gilmore 2011), Shiffrin’s view powerfully explains the First Amendment doctrine that compelled speech also constitutes a violation of freedom of expression. Traditional listener- and speaker-focused theories seemingly cannot explain what is fundamentally objectionable with forcing someone to declare a commitment to something, as with children compelled to pledge allegiance to the American flag ( West Virginia State Board of Education v. Barnette 1943). “What seems most troubling about the compelled pledge”, Shiffrin writes,

is that the motive behind the regulation, and its possible effect, is to interfere with the autonomous thought processes of the compelled speaker. (2014: 94)

Further, Shiffrin’s view explains why a concern for free speech does not merely correlate to negative duties not to interfere with expression; it also supports positive responsibilities on the part of the state to educate citizens, encouraging and supporting their development and exercise as thinking beings (2014: 107).

Consider briefly one final family of free speech theories, which appeal to the role of toleration or self-restraint. On one argument, freedom of speech is important because it develops our character as liberal citizens, helping us tame our illiberal impulses. The underlying idea of Lee Bollinger’s view is that liberalism is difficult; we recurrently face temptation to punish those who hold contrary views. Freedom of speech helps us to practice the general ethos of toleration in a manner than fortifies our liberal convictions (1986). Deeply offensive speech, like pro-Nazi speech, is protected precisely because toleration in these enormously difficult cases promotes “a general social ethic” of toleration more generally (1986: 248), thereby restraining unjust exercises of state power overall. This consequentialist argument treats the protection of offensive speech not as a tricky borderline case, but as “integral to the central functions of the principle of free speech” (1986: 133). It is precisely because tolerating evil speech involves “extraordinary self-restraint” (1986: 10) that it works its salutary effects on society generally.

The idea of self-restraint arises, too, in Matthew Kramer’s recent defense of free speech. Like listener theories, Kramer’s strongly deontological theory condemns censorship aimed at protecting audiences from exposure to misguided views. At the core of his theory is the thesis that the state’s paramount moral responsibility is to furnish the social conditions that serve the development and maintenance of citizens’ self-respect and respect for others. The achievement of such an ethically resilient citizenry, on Kramer’s view, has the effect of neutering the harmfulness of countless harmful communications. “Securely in a position of ethical strength”, the state “can treat the wares of pornographers and the maunderings of bigots as execrable chirps that are to be endured with contempt” (Kramer 2021: 147). In contrast, in a society where the state has failed to do its duty of inculcating a robust liberal-egalitarian ethos, the communication of illiberal creeds may well pose a substantial threat. Yet for the state then to react by banning such speech is

overweening because with them the system’s officials take control of communications that should have been defused (through the system’s fulfillment of its moral obligations) without prohibitory or preventative impositions. (2021: 147)

(One might agree with Kramer that this is so, but diverge by arguing that the state—having failed in its initial duty—ought to take measures to prevent the harms that flow from that failure.)

These theories are striking in that they assume that a chief task of free speech theory is to explain why harmful speech ought to be protected. This is in contrast to those who think that the chief task of free speech theory is to explain our interests in communicating with others, treating the further issue of whether (wrongfully) harmful communications should be protected as an open question, with different reasonable answers available (Kendrick 2017). In this way, toleration theories—alongside a lot of philosophical work on free speech—seem designed to vindicate the demanding American legal position on free speech, one unshared by virtually all other liberal democracies.

One final family of arguments for free speech appeals to the danger of granting the state powers it may abuse. On this view, we protect free speech chiefly because if we didn’t, it would be far easier for the state to silence its political opponents and enact unjust policies. On this view, a state with censorial powers is likely to abuse them. As Richard Epstein notes, focusing on the American case,

the entire structure of federalism, divided government, and the system of checks and balances at the federal level shows that the theme of distrust has worked itself into the warp and woof of our constitutional structure.

“The protection of speech”, he writes, “…should be read in light of these political concerns” (Epstein 1992: 49).

This view is not merely a restatement of the democracy theory; it does not affirm free speech as an element of valuable self-governance. Nor does it reduce to the uncontroversial thought that citizens need freedom of speech to check the behavior of fallible government agents (Blasi 1977). One need not imagine human beings to be particularly sinister to insist (as democracy theorists do) that the decisions of those entrusted with great power be subject to public discussion and scrutiny. The argument under consideration here is more pessimistic about human nature. It is an argument about the slippery slope that we create even when enacting (otherwise justified) speech restrictions; we set an unacceptable precedent for future conduct by the state (see Schauer 1985). While this argument is theoretical, there is clearly historical evidence for it, as in the manifold cases in which bans on dangerous sedition were used to suppress legitimate war protest. (For a sweeping canonical study of the uses and abuses of speech regulations during wartime, with a focus on U.S. history, see G. Stone 2004.)

These instrumental concerns could potentially justify the legal protection for free speech. But they do not to attempt to justify why we should care about free speech as a positive moral ideal (Shiffrin 2014: 83n); they are, in Cohen’s helpful terminology, “minimalist” rather than “maximalist” (Cohen 1993: 210). Accordingly, they cannot explain why free speech is something that even the most trustworthy, morally competent administrations, with little risk of corruption or degeneration, ought to respect. Of course, minimalists will deny that accounting for speech’s positive value is a requirement of a theory of free speech, and that critiquing them for this omission begs the question.

Pluralists may see instrumental concerns as valuably supplementing or qualifying noninstrumental views. For example, instrumental concerns may play a role in justifying deviations between the moral right to free communication, on the one hand, and a properly specified legal right to free communication, on the other. Suppose that there is no moral right to engage in certain forms of harmful expression (such as hate speech), and that there is in fact a moral duty to refrain from such expression. Even so, it does not follow automatically that such a right ought to be legally enforced. Concerns about the dangers of granting the state such power plausibly militate against the enforcement of at least some of our communicative duties—at least in those jurisdictions that lack robust and competently administered liberal-democratic safeguards.

This entry has canvassed a range of views about what justifies freedom of expression, with particular attention to theories that conceive free speech as a natural moral right. Clearly, the proponents of such views believe that they succeed in this justificatory effort. But others dissent, doubting that the case for a bona fide moral right to free speech comes through. Let us briefly note the nature of this challenge from free speech skeptics , exploring a prominent line of reply.

The challenge from skeptics is generally understood as that of showing that free speech is a special right . As Leslie Kendrick notes,

the term “special right” generally requires that a special right be entirely distinct from other rights and activities and that it receive a very high degree of protection. (2017: 90)

(Note that this usage is not to be confused from the alternative usage of “special right”, referring to conditional rights arising out of particular relationships; see Hart 1955.)

Take each aspect in turn. First, to vindicate free speech as a special right, it must serve some distinctive value or interest (Schauer 2015). Suppose free speech were just an implication of a general principle not to interfere in people’s liberty without justification. As Joel Feinberg puts it, “Liberty should be the norm; coercion always needs some special justification” (1984: 9). In such a case, then while there still might be contingent, historical reasons to single speech out in law as worthy of protection (Alexander 2005: 186), such reasons would not track anything especially distinctive about speech as an underlying moral matter. Second, to count as a special right, free speech must be robust in what it protects, such that only a compelling justification can override it (Dworkin 2013: 131). This captures the conviction, prominent among American constitutional theorists, that “any robust free speech principle must protect at least some harmful speech despite the harm it may cause” (Schauer 2011b: 81; see also Schauer 1982).

If the task of justifying a moral right to free speech requires surmounting both hurdles, it is a tall order. Skeptics about a special right to free speech doubt that the order can be met, and so deny that a natural moral right to freedom of expression can be justified (Schauer 2015; Alexander & Horton 1983; Alexander 2005; Husak 1985). But these theorists may be demanding too much (Kendrick 2017). Start with the claim that free speech must be distinctive. We can accept that free speech be more than simply one implication of a general presumption of liberty. But need it be wholly distinctive? Consider the thesis that free speech is justified by our autonomy interests—interests that justify other rights such as freedom of religion and association. Is it a problem if free speech is justified by interests that are continuous with, or overlap with, interests that justify other rights? Pace the free speech skeptics, maybe not. So long as such claims deserve special recognition, and are worth distinguishing by name, this may be enough (Kendrick 2017: 101). Many of the views canvassed above share normative bases with other important rights. For example, Rawls is clear that he thinks all the basic liberties constitute

essential social conditions for the adequate development and full exercise of the two powers of moral personality over a complete life. (Rawls 2005: 293)

The debate, then, is whether such a shared basis is a theoretical virtue (or at least theoretically unproblematic) or whether it is a theoretical vice, as the skeptics avow.

As for the claim that free speech must be robust, protecting harmful speech, “it is not necessary for a free speech right to protect harmful speech in order for it to be called a free speech right” (Kendrick 2017: 102). We do not tend to think that religious liberty must protect harmful religious activities for it to count as a special right. So it would be strange to insist that the right to free speech must meet this burden to count as a special right. Most of the theorists mentioned above take themselves to be offering views that protect quite a lot of harmful speech. Yet we can question whether this feature is a necessary component of their views, or whether we could imagine variations without this result.

3. Justifying Speech Restrictions

When, and why, can restrictions on speech be justified? It is common in public debate on free speech to hear the provocative claim that free speech is absolute . But the plausibility of such a claim depends on what is exactly meant by it. If understood to mean that no communications between humans can ever be restricted, such a view is held by no one in the philosophical debate. When I threaten to kill you unless you hand me your money; when I offer to bribe the security guard to let me access the bank vault; when I disclose insider information that the company in which you’re heavily invested is about to go bust; when I defame you by falsely posting online that you’re a child abuser; when I endanger you by labeling a drug as safe despite its potentially fatal side-effects; when I reveal your whereabouts to assist a murderer intent on killing you—across all these cases, communications may be uncontroversially restricted. But there are different views as to why.

To help organize such views, consider a set of distinctions influentially defended by Schauer (from 1982 onward). The first category involves uncovered speech : speech that does not even presumptively fall within the scope of a principle of free expression. Many of the speech-acts just canvassed, such as the speech involved in making a threat or insider training, plausibly count as uncovered speech. As the U.S. Supreme Court has said of fighting words (e.g., insults calculated to provoke a street fight),

such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. ( Chaplinsky v. New Hampshire 1942)

The general idea here is that some speech simply has negligible—and often no —value as free speech, in light of its utter disconnection from the values that justify free speech in the first place. (For discussion of so-called “low-value speech” in the U.S. context, see Sunstein 1989 and Lakier 2015.) Accordingly, when such low-value speech is harmful, it is particularly easy to justify its curtailment. Hence the Court’s view that “the prevention and punishment of [this speech] have never been thought to raise any Constitutional problem”. For legislation restricting such speech, the U.S. Supreme Court applies a “rational basis” test, which is very easy to meet, as it simply asks whether the law is rationally related to a legitimate state interest. (Note that it is widely held that it would still be impermissible to selectively ban low-value speech on a viewpoint-discriminatory basis—e.g., if a state only banned fighting words from left-wing activists while allowing them from right-wing activists.)

Schauer’s next category concerns speech that is covered but unprotected . This is speech that engages the values that underpin free speech; yet the countervailing harm of the speech justifies its restriction. In such cases, while there is real value in such expression as free speech, that value is outweighed by competing normative concerns (or even, as we will see below, on behalf of the very values that underpin free speech). In U.S. constitutional jurisprudence, this category encompasses those extremely rare cases in which restrictions on political speech pass the “strict scrutiny” test, whereby narrow restrictions on high-value speech can be justified due to the compelling state interests thereby served. Consider Holder v. Humanitarian Law Project 2010, in which the Court held that an NGO’s legal advice to a terrorist organization on how to pursue peaceful legal channels were legitimately criminalized under a counter-terrorism statute. While such speech had value as free speech (at least on one interpretation of this contested ruling), the imperative of counter-terrorism justified its restriction. (Arguably, commercial speech, while sometimes called low-value speech by scholars, falls into the covered but unprotected category. Under U.S. law, legislation restricting it receives “intermediate scrutiny” by courts—requiring restrictions to be narrowly drawn to advance a substantial government interest. Such a test suggests that commercial speech has bona fide free-speech value, making it harder to justify regulations on it than regulations on genuinely low-value speech like fighting words. It simply doesn’t have as much free-speech value as categories like political speech, religious speech, or press speech, all of which trigger the strict scrutiny test when restricted.)

As a philosophical matter, we can reasonably disagree about what speech qualifies as covered but unprotected (and need not treat the verdicts of the U.S. Supreme Court as philosophically decisive). For example, consider politically-inflected hate speech, which advances repugnant ideas about the inferior status of certain groups. One could concur that there is substantial free-speech value in such expression, just because it involves the sincere expression of views about central questions of politics and justice (however misguided the views doubtlessly are). Yet one could nevertheless hold that such speech should not be protected in virtue of the substantial harms to which it can lead. In such cases, the free-speech value is outweighed. Many scholars who defend the permissibility of legal restrictions on hate speech hold such a view (e.g., Parekh 2012; Waldron 2012). (More radically, one could hold that such speech’s value is corrupted by its evil, such that it qualifies as genuinely low-value; Howard 2019a.)

The final category of speech encompasses expression that is covered and protected . To declare that speech is protected just is to conclude that it is immune from restriction. A preponderance of human communications fall into this category. This does not mean that such speech can never be regulated ; content-neutral time, place, and manner regulations (e.g., prohibiting loud nighttime protests) can certainly be justified (G. Stone 1987). But such regulations must not be viewpoint discriminatory; they must apply even-handedly across all forms of protected speech.

Schauer’s taxonomy offers a useful organizing framework for how we should think about different forms of speech. Where does it leave the claim that free speech is absolute? The possibility of speech that is covered but unprotected suggests that free speech should sometimes be restricted on account of rival normative concerns. Of course, one could contend that such a category, while logically possible, is substantively an empty set; such a position would involve some kind of absoluteness about free speech (holding that where free-speech values are engaged by expression, no countervailing values can ever be weighty enough to override them). Such a position would be absolutist in a certain sense while granting the permissibility of restrictions on speech that do not engage the free-speech values. (For a recent critique of Schauer’s framework, arguing that governmental designation of some speech as low-value is incompatible with the very ideal of free speech, see Kramer 2021: 31.)

In what follows, this entry will focus on Schauer’s second category: speech that is covered by a free speech principle, but is nevertheless unprotected because of the harms it causes. How do we determine what speech falls into this category? How, in other words, do we determine the limits of free speech? Unsurprisingly, this is where most of the controversy lies.

Most legal systems that protect free speech recognize that the right has limits. Consider, for example, international human rights law, which emphatically protects the freedom of speech as a fundamental human right while also affirming specific restrictions on certain seriously harmful speech. Article 19 of the International Covenant of Civil and Political Rights declares that “[e]veryone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds”—but then immediately notes that this right “carries with it special duties and responsibilities”. The subsequent ICCPR article proceeds to endorse legal restrictions on “advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence”, as well as speech constituting “propaganda for war” (ICCPR). While such restrictions would plainly be struck down as unconstitutional affronts to free speech in the U.S., this more restrictive approach prevails in most liberal democracies’ treatment of harmful speech.

Set aside the legal issue for now. How should we think about how to determine the limits of the moral right free speech? Those seeking to justify limits on speech tend to appeal to one of two strategies (Howard and Simpson forthcoming). The first strategy appeals to the importance of balancing free speech against other moral values when they come into conflict. This strategy involves external limits on free speech. (The next strategy, discussed below, invokes free speech itself, or the values that justify it, as limit-setting rationales; it thus involves internal limits on free speech.)

A balancing approach recognizes a moral conflict between unfettered communication and external values. Consider again the case of hate speech, understood as expression that attacks members of socially vulnerable groups as inferior or dangerous. On all of the theories canvassed above, there are grounds for thinking that restrictions on hate speech are prima facie in violation of the moral right to free speech. Banning hate speech to prevent people from hearing ideas that might incline them to bigotry plainly seems to disrespect listener autonomy. Further, even when speakers are expressing prejudiced views, they are still engaging their autonomous faculties. Certainly, they are expressing views on questions of public political concern, even false ones. And as thinkers they are engaged in the communication of sincere testimony to others. On many of the leading theories, the values underpinning free speech seem to be militate against bans on hate speech.

Even so, other values matter. Consider, for example, the value of upholding the equal dignity of all citizens. A central insight of critical race theory is that public expressions of white supremacy, for example, attack and undermine that equal dignity (Matsuda, Lawrence, Delgado, & Crenshaw 1993). On Jeremy Waldron’s view (2012), hate speech is best understood as a form of group defamation, launching spurious attacks on others’ reputations and thereby undermining their standing as respected equals in their own community (relatedly, see Beauharnais v. Illinois 1952).

Countries that ban hate speech, accordingly, are plausibly understood not as opposed to free speech, but as recognizing the importance that it be balanced when conflicting with other values. Such balancing can be understood in different ways. In European human rights law, for example, the relevant idea is that the right to free speech is balanced against other rights ; the relevant task, accordingly, is to specify what counts as a proportionate balance between these rights (see Alexy 2003; J. Greene 2021).

For others, the very idea of balancing rights undermines their deontic character. This alternative framing holds that the balancing occurs before we specify what rights are; on this view, we balance interests against each other, and only once we’ve undertaken that balancing do we proceed to define what our rights protect. As Scanlon puts it,

The only balancing is balancing of interests. Rights are not balanced, but are defined, or redefined, in the light of the balance of interests and of empirical facts about how these interests can best be protected. (2008: 78)

This balancing need not come in the form of some crude consequentialism; otherwise it would be acceptable to limit the rights of the few to secure trivial benefits for the many. On a contractualist moral theory such as Scanlon’s, the test is to assess the strength of any given individual’s reason to engage in (or access) the speech, against the strength of any given individual’s reason to oppose it.

Note that those who engage in balancing need not give up on the idea of viewpoint neutrality; they can accept that, as a general principle, the state should not restrict speech on the grounds that it disapproves of its message and dislikes that others will hear it. The point, instead, is that this commitment is defeasible; it is possible to be overridden.

One final comment is apt. Those who are keen to balance free speech against other values tend to be motivated by the concern that speech can cause harm, either directly or indirectly (on this distinction, see Schauer 1993). But to justify restrictions on speech, it is not sufficient (and perhaps not even necessary) to show that such speech imposes or risks imposing harm. The crucial point is that the speech is wrongful (or, perhaps, wrongfully harmful or risky) , breaching a moral duty that speakers owe to others. Yet very few in the free speech literature think that the mere offensiveness of speech is sufficient to justify restrictions on it. Even Joel Feinberg, who thinks offensiveness can sometimes be grounds for restricting conduct, makes a sweeping exception for

[e]xpressions of opinion, especially about matters of public policy, but also about matters of empirical fact, and about historical, scientific, theological, philosophical, political, and moral questions. (1985: 44)

And in many cases, offensive speech may be actively salutary, as when racists are offended by defenses of racial equality (Waldron 1987). Accordingly, despite how large it looms in public debate, discussion of offensive speech will not play a major role in the discussion here.

We saw that one way to justify limits on free speech is to balance it against other values. On that approach, free speech is externally constrained. A second approach, in contrast, is internally constrained. On this approach, the very values that justify free speech themselves determine its own limits. This is a revisionist approach to free speech since, unlike orthodox thinking, it contends that a commitment to free speech values can counterintuitively support the restriction of speech—a surprising inversion of traditional thinking on the topic (see Howard and Simpson forthcoming). This move—justifying restrictions on speech by appealing to the values that underpin free speech—is now prevalent in the philosophical literature (for an overview, see Barendt 2005: 1ff).

Consider, for example, the claim that free speech is justified by concerns of listener autonomy. On such a view, as we saw above, autonomous citizens have interests in exposure to a wide range of viewpoints, so that they can decide for themselves what to believe. But many have pointed out that this is not autonomous citizens’ only interest; they also have interests in not getting murdered by those incited by incendiary speakers (Amdur 1980). Likewise, insofar as being targeted by hate speech undermines the exercise of one’s autonomous capacities, appeal to the underlying value of autonomy could well support restrictions on such speech (Brison 1998; see also Brink 2001). What’s more, if our interests as listeners in acquiring accurate information is undermined by fraudulent information, then restrictions on such information could well be compatible with our status as autonomous; this was one of the insights that led Scanlon to complicate his theory of free speech (1978).

Or consider the theory that free speech is justified because of its role in enabling autonomous speakers to express themselves. But as Japa Pallikkathayil has argued, some speech can intimidate its audiences into staying silent (as with some hate speech), out of fear for what will happen if they speak up (Pallikkathayil 2020). In principle, then, restrictions on hate speech may serve to support the value of speaker expression, rather than undermine it (see also Langton 2018; Maitra 2009; Maitra & McGowan 2007; and Matsuda 1989: 2337). Indeed, among the most prominent claims in feminist critiques of pornography is precisely that it silences women—not merely through its (perlocutionary) effects in inspiring rape, but more insidiously through its (illocutionary) effects in altering the force of the word “no” (see MacKinnon 1984; Langton 1993; and West 204 [2022]; McGowan 2003 and 2019; cf. Kramer 2021, pp. 160ff).

Now consider democracy theories. On the one hand, democracy theorists are adamant that citizens should be free to discuss any proposals, even the destruction of democracy itself (e.g., Meiklejohn 1948: 65–66). On the other hand, it isn’t obvious why citizens’ duties as democratic citizens could not set a limit to their democratic speech rights (Howard 2019a). The Nazi propagandist Goebbels is said to have remarked:

This will always remain one of the best jokes of democracy, that it gave its deadly enemies the means by which it was destroyed. (as quoted in Fox & Nolte 1995: 1)

But it is not clear why this is necessarily so. Why should we insist on a conception of democracy that contains a self-destruct mechanism? Merely stipulating that democracy requires this is not enough (see A. Greene and Simpson 2017).

Finally, consider Shiffrin’s thinker-based theory. Shiffrin’s view is especially well-placed to explain why varieties of harmful communications are protected speech; what the theory values is the sincere transmission of veridical testimony, whereby speakers disclose what they genuinely believe to others, even if what they believe is wrongheaded and dangerous. Yet because the sincere testimony of thinkers is what qualifies some communication for protection, Shiffrin is adamant that lying falls outside the protective ambit of freedom of expression (2014) This, then, sets an internal limit on her own theory (even if she herself disfavors all lies’ outright prohibition for reasons of tolerance). The claim that lying falls outside the protective ambit of free speech is itself a recurrent suggestion in the literature (Strauss 1991: 355; Brown 2023). In an era of rampant disinformation, this internal limit is of substantial practical significance.

Suppose the moral right (or principle) of free speech is limited, as most think, such that not all communications fall within its protective ambit (either for external reasons, internal reasons, or both). Even so, it does not follow that laws banning such unprotected speech can be justified all-things-considered. Further moral tests must be passed before any particular policy restricting speech can be justified. This sub-section focuses on the requirement that speech restrictions be proportionate .

The idea that laws implicating fundamental rights must be proportionate is central in many jurisdictions’ constitutional law, as well as in the international law of human rights. As a representative example, consider the specification of proportionality offered by the Supreme Court of Canada:

First, the measures adopted must be carefully designed to achieve the objective in question. They must not be arbitrary, unfair, or based on irrational considerations. In short, they must be rationally connected to the objective. Second, the means, even if rationally connected to the objective in this first sense, should impair “as little as possible” the right or freedom in question[…] Third, there must be a proportionality between the effects of the measures which are responsible for limiting the Charter right or freedom, and the objective which has been identified as of “sufficient importance” ( R v. Oakes 1986).

It is this third element (often called “proportionality stricto sensu ”) on which we will concentrate here; this is the focused sense of proportionality that roughly tracks how the term is used in the philosophical literatures on defensive harm and war, as well as (with some relevant differences) criminal punishment. (The strict scrutiny and intermediate scrutiny tests of U.S. constitutional law are arguably variations of the proportionality test; but set aside this complication for now as it distracts from the core philosophical issues. For relevant legal discussion, see Tsesis 2020.)

Proportionality, in the strict sense, concerns the relation between the costs or harms imposed by some measure and the benefits that the measure is designed to secure. The organizing distinction in recent philosophical literature (albeit largely missing in the literature on free speech) is one between narrow proportionality and wide proportionality . While there are different ways to cut up the terrain between these terms, let us stipulatively define them as follows. An interference is narrowly proportionate just in case the intended target of the interference is liable to bear the costs of that interference. An interference is widely proportionate just in case the collateral costs that the interference unintentionally imposes on others can be justified. (This distinction largely follows the literature in just war theory and the ethics of defensive force; see McMahan 2009.) While the distinction is historically absent from free speech theory, it has powerful payoffs in helping to structure this chaotic debate (as argued in Howard 2019a).

So start with the idea that restrictions on communication must be narrowly proportionate . For a restriction to be narrowly proportionate, those whose communications are restricted must be liable to bear their costs, such that they are not wronged by their imposition. One standard way to be liable to bear certain costs is to have a moral duty to bear them (Tadros 2012). So, for example, if speakers have a moral duty to refrain from libel, hate speech, or some other form of harmful speech, they are liable to bear at least some costs involved in the enforcement of that duty. Those costs cannot be unlimited; a policy of executing hate speakers could not plausibly be justified. Typically, in both defensive and punitive contexts, wrongdoers’ liability is determined by their culpability, the severity of their wrong, or some combination of the two. While it is difficult to say in the abstract what the precise maximal cost ceiling is for any given restriction, as it depends hugely on the details, the point is simply that there is some ceiling above which a speech restriction (like any restriction) imposes unacceptably high costs, even on wrongdoers.

Second, for a speech restriction to be justified, we must also show that it would be widely proportionate . Suppose a speaker is liable to bear the costs of some policy restricting her communication, such that she is not wronged by its imposition. It may be that the collateral costs of such a policy would render it unacceptable. One set of costs is chilling effects , the “overdeterrence of benign conduct that occurs incidentally to a law’s legitimate purpose or scope” (Kendrick 2013: 1649). The core idea is that laws targeting unprotected, legitimately proscribed expression may nevertheless end up having a deleterious impact on protected expression. This is because laws are often vague, overbroad, and in any case are likely to be misapplied by fallible officials (Schauer 1978: 699).

Note that if a speech restriction produces chilling effects, it does not follow that the restriction should not exist at all. Rather, concern about chilling effects instead suggests that speech restrictions should be under-inclusive—restricting less speech than is actually harmful—in order to create “breathing space”, or “a buffer zone of strategic protection” (Schauer 1978: 710) for legitimate expression and so reduce unwanted self-censorship. For example, some have argued that even though speech can cause harm recklessly or negligently, we should insist on specific intent as the mens rea of speech crimes in order to reduce any chilling effects that could follow (Alexander 1995: 21–128; Schauer 1978: 707; cf. Kendrick 2013).

But chilling effects are not the only sort of collateral effects to which speech restrictions could lead. Earlier we noted the risk that states might abuse their censorial powers. This, too, could militate in favor of underinclusive speech restrictions. Or the implication could be more radical. Consider the problem that it is difficult to author restrictions on hate speech in a tightly specified way; the language involved is open-ended in a manner that enables states to exercise considerable judgment in deciding what speech-acts, in fact, count as violations (see Strossen 2018). Given the danger that the state will misuse or abuse these laws to punish legitimate speech, some might think this renders their enactment widely disproportionate. Indeed, even if the law were well-crafted and would be judiciously applied by current officials, the point is that those in the future may not be so trustworthy.

Those inclined to accept such a position might simply draw the conclusion that legislatures ought to refrain from enacting laws against hate speech. A more radical conclusion is that the legal right to free speech ought to be specified so that hate speech is constitutionally protected. In other words, we ought to give speakers a legal right to violate their moral duties, since enforcing those moral duties through law is simply too risky. By appealing to this logic, it is conceivable that the First Amendment position on hate speech could be justified all-things-considered—not because the underlying moral right to free speech protects hate speech, but because hate speech must be protected for instrumental reasons of preventing future abuses of power (Howard 2019a).

Suppose certain restrictions on harmful speech can be justified as proportionate, in both the narrow and wide senses. This is still not sufficient to justify them all-things-considered. Additionally, they must be justified as necessary . (Note that some conceptions of proportionality in human rights law encompass the necessity requirement, but this entry follows the prevailing philosophical convention by treating them as distinct.)

Why might restrictions on harmful speech be unnecessary? One of the standard claims in the free speech literature is that we should respond to harmful speech not by banning it, but by arguing back against it. Counter-speech—not censorship—is the appropriate solution. This line of reasoning is old. As John Milton put it in 1644: “Let [Truth] and Falsehood grapple; who ever knew Truth put to the worse in a free and open encounter?” The insistence on counter-speech as the remedy for harmful speech is similarly found, as noted above, throughout chapter 2 of Mill’s On Liberty .

For many scholars, this line of reply is justified by the fact that they think the harmful speech in question is protected by the moral right to free speech. For such scholars, counter-speech is the right response because censorship is morally off the table. For other scholars, the recourse to counter-speech has a plausible distinct rationale (although it is seldom articulated): its possibility renders legal restrictions unnecessary. And because it is objectionable to use gratuitous coercion, legal restrictions are therefore impermissible (Howard 2019a). Such a view could plausibly justify Mill’s aforementioned analysis in the corn dealer example, whereby censorship is permissible but only when there’s no time for counter-speech—a view that is also endorsed by the U.S. Supreme Court in Brandenburg v. Ohio 395 U.S. 444 (1969).

Whether this argument succeeds depends upon a wide range of further assumptions—about the comparable effectiveness of counter-speech relative to law; about the burdens that counter-speech imposes on prospective counter-speakers. Supposing that the argument succeeds, it invites a range of further normative questions about the ethics of counter-speech. For example, it is important who has the duty to engage in counter-speech, who its intended audience is, and what specific forms the counter-speech ought to take—especially in order to maximize its persuasive effectiveness (Brettschneider 2012; Cepollaro, Lepoutre, & Simpson 2023; Howard 2021b; Lepoutre 2021; Badano & Nuti 2017). It is also important to ask questions about the moral limits of counter-speech. For example, insofar as publicly shaming wrongful speakers has become a prominent form of counter-speech, it is crucial to interrogate its permissibility (e.g., Billingham and Parr 2020).

This final section canvasses the young philosophical debate concerning freedom of speech on the internet. With some important exceptions (e.g., Barendt 2005: 451ff), this issue has only recently accelerated (for an excellent edited collection, see Brison & Gelber 2019). There are many normative questions to be asked about the moral rights and obligations of internet platforms. Here are three. First, do internet platforms have moral duties to respect the free speech of their users? Second, do internet platforms have moral duties to restrict (or at least refrain from amplifying) harmful speech posted by their users? And finally, if platforms do indeed have moral duties to restrict harmful speech, should those duties be legally enforced?

The reference to internet platforms , is a deliberate focus on large-scale social media platforms, through which people can discover and publicly share user-generated content. We set aside other entities such as search engines (Whitney & Simpson 2019), important though they are. That is simply because the central political controversies, on which philosophical input is most urgent, concern the large social-media platforms.

Consider the question of whether internet platforms have moral duties to respect the free speech of their users. One dominant view in the public discourse holds that the answer is no . On this view, platforms are private entities, and as such enjoy the prerogative to host whatever speech they like. This would arguably be a function of them having free speech rights themselves. Just as the free speech rights of the New York Times give it the authority to publish whatever op-eds it sees fit, the free speech rights of platforms give them the authority to exercise editorial or curatorial judgment about what speech to allow. On this view, if Facebook were to decide to become a Buddhist forum, amplifying the speech of Buddhist users and promoting Buddhist perspectives and ideas, and banning speech promoting other religions, it would be entirely within its moral (and thus proper legal) rights to do so. So, too, if it were to decide to become an atheist forum.

A radical alternative view holds that internet platforms constitute a public forum , a term of art from U.S. free speech jurisprudence used to designate spaces “designed for and dedicated to expressive activities” ( Southeastern Promotions Ltd., v. Conrad 1975). As Kramer has argued:

social-media platforms such as Facebook and Twitter and YouTube have become public fora. Although the companies that create and run those platforms are not morally obligated to sustain them in existence at all, the role of controlling a public forum morally obligates each such company to comply with the principle of freedom of expression while performing that role. No constraints that deviate from the kinds of neutrality required under that principle are morally legitimate. (Kramer 2021: 58–59)

On this demanding view, platforms’ duties to respect speech are (roughly) identical to the duties of states. Accordingly, if efforts by the state to restrict hate speech, pornography, and public health misinformation (for example) are objectionable affronts to free speech, so too are platforms’ content moderation rules for such content. A more moderate view does not hold that platforms are public forums as such, but holds that government channels or pages qualify as public forums (the claim at issue in Knight First Amendment Institute v. Trump (2019).)

Even if we deny that platforms constitute public forums, it is plausible that they engage in a governance function of some kind (Klonick 2018). As Jack Balkin has argued, the traditional model of free speech, which sees it as a relation between speakers and the state, is today plausibly supplanted by a triadic model, involving a more complex relation between speakers, governments, and intermediaries (2004, 2009, 2018, 2021). If platforms do indeed have some kind of governance function, it may well trigger responsibilities for transparency and accountability (as with new legislation such as the EU’s Digital Services Act and the UK’s Online Safety Act).

Second, consider the question of whether platforms have a duty to remove harmful content posted by users. Even those who regard them as public forums could agree that platforms may have a moral responsibility to remove illegal unprotected speech. Yet a dominant view in the public debate has historically defended platforms’ place as mere conduits for others’ speech. This is the current position under U.S. law (as with 47 U.S. Code §230), which broadly exempts platforms from liability for much illegal speech, such as defamation. On this view, we should view platforms as akin to bulletin boards: blame whoever posts wrongful content, but don’t hold the owner of the board responsible.

This view is under strain. Even under current U.S. law, platforms are liable for removing some content, such as child sexual abuse material and copyright infringements, suggesting that it is appropriate to demand some accountability for the wrongful content posted by others. An increasing body of philosophical work explores the idea that platforms are indeed morally responsible for removing extreme content. For example, some have argued that platforms have a special responsibility to prevent the radicalization that occurs on their networks, given the ways in which extreme content is amplified to susceptible users (Barnes 2022). Without engaging in moderation (i.e., removal) of harmful content, platforms are plausibly complicit with the wrongful harms perpetrated by users (Howard forthcoming).

Yet it remains an open question what a responsible content moderation policy ought to involve. Many are tempted by a juridical model, whereby platforms remove speech in accordance with clearly announced rules, with user appeals mechanisms in place for individual speech decisions to ensure they are correctly made (critiqued in Douek 2022b). Yet platforms have billions of users and remove millions of pieces of content per week. Accordingly, perfection is not possible. Moving quickly to remove harmful content during a crisis—e.g., Covid misinformation—will inevitably increase the number of false positives (i.e., legitimate speech taken down as collateral damage). It is plausible that the individualistic model of speech decisions adopted by courts is decidedly implausible to help us govern online content moderation; as noted in Douek 2021 and 2022a, what is needed is analysis of how the overall system should operate at scale, with a focus on achieving proportionality between benefits and costs. Alternatively, one might double down and insist that the juridical model is appropriate, given the normative significance of speech. And if it is infeasible for social-media companies to meet its demands given their size, then all the worse for social-media companies. On this view, it is they who must bend to meet the moral demands of free speech theory, not the other way around.

Substantial philosophical work needs to be done to deliver on this goal. The work is complicated by the fact that artificial intelligence (AI) is central to the processes of content moderation; human moderators, themselves subjected to terrible working conditions at long hours, work in conjunction with machine learning tools to identify and remove content that platforms have restricted. Yet AI systems notoriously are as biased as their training data. Further, their “black box” decisions are cryptic and cannot be easily understood. Given that countless speech decisions will necessarily be made without human involvement, it is right to ask whether it is reasonable to expect users to accept the deliverances of machines (e.g., see Vredenburgh 2022; Lazar forthcoming a). Note that machine intelligence is used not merely for content moderation, narrowly understood as the enforcement of rules about what speech is allowed. It is also deployed for the broader practice of content curation, determining what speech gets amplified — raising the question of what normative principles should govern such amplification; see Lazar forthcoming b).

Finally, there is the question of legal enforcement. Showing that platforms have the moral responsibility to engage in content moderation is necessary to justifying its codification into a legal responsibility. Yet it is not sufficient; one could accept that platforms have moral duties to moderate (some) harmful speech while also denying that those moral duties ought to be legally enforced. A strong, noninstrumental version of such a view would hold that while speakers have moral duties to refrain from wrongful speech, and platforms have duties not to platform or amplify it, the coercive enforcement of such duties would violate the moral right to freedom of expression. A more contingent, instrumental version of the view would hold that legal enforcement is not in principle impermissible; but in practice, it is simply too risky to grant the state the authority to enforce platforms’ and speakers’ moral duties, given the potential for abuse and overreach.

Liberals who champion the orthodox interpretation of the First Amendment, yet insist on robust content moderation, likely hold one or both of these views. Yet globally such views seem to be in the minority. Serious legislation is imminent that will subject social-media companies to burdensome regulation, in the form of such laws as the Digital Services Act in the European Union and the Online Safety Bill in the UK. Normatively evaluating such legislation is a pressing task. So, too, is the task of designing normative theories to guide the design of content moderation systems, and the wider governance of the digital public sphere. On both fronts, political philosophers should get back to work.

• Alexander, Larry [Lawrence], 1995, “Free Speech and Speaker’s Intent”, Constitutional Commentary , 12(1): 21–28.
• –––, 2005, Is There a Right of Freedom of Expression? , (Cambridge Studies in Philosophy and Law), Cambridge/New York: Cambridge University Press.
• Alexander, Lawrence and Paul Horton, 1983, “The Impossibility of a Free Speech Principle Review Essay”, Northwestern University Law Review , 78(5): 1319–1358.
• Alexy, Robert, 2003, “Constitutional Rights, Balancing, and Rationality”, Ratio Juris , 16(2): 131–140. doi:10.1111/1467-9337.00228
• Amdur, Robert, 1980, “Scanlon on Freedom of Expression”, Philosophy & Public Affairs , 9(3): 287–300.
• Arneson, Richard, 2009, “Democracy is Not Intrinsically Just”, in Justice and Democracy , Keith Dowding, Robert E. Goodin, and Carole Pateman (eds.), Cambridge: Cambridge University Press, 40–58.
• Baker, C. Edwin, 1989, Human Liberty and Freedom of Speech , New York: Oxford University Press.
• –––, 2009, “Autonomy and Hate Speech”, in Hare and Weinstein 2009: 139–157 (ch. 8). doi:10.1093/acprof:oso/9780199548781.003.0009
• Balkin, Jack M., 2004, “Digital Speech and Democratic Culture: A Theory of Freedom of Expression for the Information Society”, New York University Law Review , 79(1): 1–55.
• –––, 2009, “The Future of Free Expression in a Digital Age Free Speech and Press in the Digital Age”, Pepperdine Law Review , 36(2): 427–444.
• –––, 2018, “Free Speech Is a Triangle Essays”, Columbia Law Review , 118(7): 2011–2056.
• –––, 2021, “How to Regulate (and Not Regulate) Social Media”, Journal of Free Speech Law , 1(1): 71–96. [ Balkin 2021 available online (pdf) ]
• Barendt, Eric M., 2005, Freedom of Speech , second edition, Oxford/New York: Oxford University Press. doi:10.1093/acprof:oso/9780199225811.001.0001
• Barnes, Michael Randall, 2022, “Online Extremism, AI, and (Human) Content Moderation”, Feminist Philosophy Quarterly , 8(3/4): article 6. [ Barnes 2022 available online ]
• Beauharnais v. Illinois 343 U.S. 250 (1952).
• Billingham, Paul and Tom Parr, 2020, “Enforcing Social Norms: The Morality of Public Shaming”, European Journal of Philosophy , 28(4): 997–1016. doi:10.1111/ejop.12543
• Blasi, Vincent, 1977, “The Checking Value in First Amendment Theory”, American Bar Foundation Research Journal 3: 521–649.
• –––, 2004, “Holmes and the Marketplace of Ideas”, The Supreme Court Review , 2004: 1–46.
• Brettschneider, Corey Lang, 2012, When the State Speaks, What Should It Say? How Democracies Can Protect Expression and Promote Equality , Princeton, NJ: Princeton University Press.
• Brietzke, Paul H., 1997, “How and Why the Marketplace of Ideas Fails”, Valparaiso University Law Review , 31(3): 951–970.
• Bollinger, Lee C., 1986, The Tolerant Society: Free Speech and Extremist Speech in America , New York: Oxford University Press.
• Bonotti, Matteo and Jonathan Seglow, 2022, “Freedom of Speech: A Relational Defence”, Philosophy & Social Criticism , 48(4): 515–529.
• Brandenburg v. Ohio 395 U.S. 444 (1969).
• Brink, David O., 2001, “Millian Principles, Freedom of Expression, and Hate Speech”, Legal Theory , 7(2): 119–157. doi:10.1017/S1352325201072019
• Brison, Susan J., 1998, “The Autonomy Defense of Free Speech”, Ethics , 108(2): 312–339. doi:10.1086/233807
• Brison, Susan J. and Katharine Gelber (eds), 2019, Free Speech in the Digital Age , Oxford: Oxford University Press. doi:10.1093/oso/9780190883591.001.0001
• Brown, Étienne, 2023, “Free Speech and the Legal Prohibition of Fake News”, Social Theory and Practice , 49(1): 29–55. doi:10.5840/soctheorpract202333179
• Buchanan, Allen E., 2013, The Heart of Human Rights , Oxford: Oxford University Press. doi:10.1093/acprof:oso/9780199325382.001.0001
• Cepollaro, Bianca, Maxime Lepoutre, and Robert Mark Simpson, 2023, “Counterspeech”, Philosophy Compass , 18(1): e12890. doi:10.1111/phc3.12890
• Chaplinsky v. New Hampshire 315 U.S. 568 (1942).
• Cohen, Joshua, 1993, “Freedom of Expression”, Philosophy & Public Affairs , 22(3): 207–263.
• –––, 1997, “Deliberation and Democratic Legitimacy”, in Deliberative Democracy: Essays on Reason and Politics , James Bohman and William Rehg (eds), Cambridge, MA: MIT Press, 67–92.
• Dworkin, Ronald, 1981, “Is There a Right to Pornography?”, Oxford Journal of Legal Studies , 1(2): 177–212. doi:10.1093/ojls/1.2.177
• –––, 1996, Freedom’s Law: The Moral Reading of the American Constitution , Cambridge, MA: Harvard University Press.
• –––, 2006, “A New Map of Censorship”, Index on Censorship , 35(1): 130–133. doi:10.1080/03064220500532412
• –––, 2009, “Forward.” In Extreme Speech and Democracy , ed. J. Weinstein and I. Hare, pp. v-ix. Oxford: Oxford University Press.
• –––, 2013, Religion without God , Cambridge, MA: Harvard University Press.
• Douek, Evelyn, 2021, “Governing Online Speech: From ‘Posts-as-Trumps’ to Proportionality and Probability”, Columbia Law Review , 121(3): 759–834.
• –––, 2022a, “Content Moderation as Systems Thinking”, Harvard Law Review , 136(2): 526–607.
• –––, 2022b, “The Siren Call of Content Moderation Formalism”, in Social Media, Freedom of Speech, and the Future of Our Democracy , Lee C. Bollinger and Geoffrey R. Stone (eds.), New York: Oxford University Press, 139–156 (ch. 9). doi:10.1093/oso/9780197621080.003.0009
• Ely, John Hart, 1975, “Flag Desecration: A Case Study in the Roles of Categorization and Balancing in First Amendment Analysis”, Harvard Law Review , 88: 1482–1508.
• Emerson, Thomas I., 1970, The System of Freedom of Expression , New York: Random House.
• Epstein, Richard A., 1992, “Property, Speech, and the Politics of Distrust”, University of Chicago Law Review , 59(1): 41–90.
• Estlund, David, 2008, Democratic Authority: A Philosophical Framework , Princeton: Princeton University Press.
• Feinberg, Joel, 1984, The Moral Limits of the Criminal Law Volume 1: Harm to Others , New York: Oxford University Press. doi:10.1093/0195046641.001.0001
• –––, 1985, The Moral Limits of the Criminal Law: Volume 2: Offense to Others , New York: Oxford University Press. doi:10.1093/0195052153.001.0001
• Fish, Stanley Eugene, 1994, There’s No Such Thing as Free Speech, and It’s a Good Thing, Too , New York: Oxford University Press.
• Fox, Gregory H. and Georg Nolte, 1995, “Intolerant Democracies”, Harvard International Law Journal , 36(1): 1–70.
• Gelber, Katharine, 2010, “Freedom of Political Speech, Hate Speech and the Argument from Democracy: The Transformative Contribution of Capabilities Theory”, Contemporary Political Theory , 9(3): 304–324. doi:10.1057/cpt.2009.8
• Gilmore, Jonathan, 2011, “Expression as Realization: Speakers’ Interests in Freedom of Speech”, Law and Philosophy , 30(5): 517–539. doi:10.1007/s10982-011-9096-z
• Gordon, Jill, 1997, “John Stuart Mill and the ‘Marketplace of Ideas’:”, Social Theory and Practice , 23(2): 235–249. doi:10.5840/soctheorpract199723210
• Greenawalt, Kent, 1989, Speech, Crime, and the Uses of Language , New York: Oxford University Press.
• Greene, Amanda R. and Robert Mark Simpson, 2017, “Tolerating Hate in the Name of Democracy”, The Modern Law Review , 80(4): 746–765. doi:10.1111/1468-2230.12283
• Greene, Jamal, 2021, How Rights Went Wrong: Why Our Obsession with Rights Is Tearing America Apart , Boston: Houghton Mifflin Harcourt.
• Gutmann, Amy and Dennis Thompson, 2008, Why Deliberative Democracy? Princeton: Princeton University Press.
• Habermas, Jürgen, 1992 [1996], Faktizität und Geltung: Beiträge zur Diskurstheorie des Rechts und des demokratischen Rechtsstaats , Frankfurt am Main: Suhrkamp. Translated as Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy , William Rehg (trans.), (Studies in Contemporary German Social Thought), Cambridge, MA: MIT Press, 1996.
• Hare, Ivan and James Weinstein (eds), 2009, Extreme Speech and Democracy , Oxford/New York: Oxford University Press. doi:10.1093/acprof:oso/9780199548781.001.0001
• Hart, H. L. A., 1955, “Are There Any Natural Rights?”, The Philosophical Review , 64(2): 175–191. doi:10.2307/2182586
• Heinze, Eric, 2016, Hate Speech and Democratic Citizenship , Oxford: Oxford University Press. doi:10.1093/acprof:oso/9780198759027.001.0001
• Heyman, Steven J., 2009, “Hate Speech, Public Discourse, and the First Amendment”, in Hare and Weinstein 2009: 158–181 (ch. 9). doi:10.1093/acprof:oso/9780199548781.003.0010
• Hohfeld, Wesley, 1917, “Fundamental Legal Conceptions as Applied in Judicial Reasoning,” Yale Law Journal 26(8): 710–770.
• Holder v. Humanitarian Law Project 561 U.S. 1 (2010).
• Hornsby, Jennifer, 1995, “Disempowered Speech”, Philosophical Topics , 23(2): 127–147. doi:10.5840/philtopics199523211
• Howard, Jeffrey W., 2019a, “Dangerous Speech”, Philosophy & Public Affairs , 47(2): 208–254. doi:10.1111/papa.12145
• –––, 2019b, “Free Speech and Hate Speech”, Annual Review of Political Science , 22: 93–109. doi:10.1146/annurev-polisci-051517-012343
• –––, 2021, “Terror, Hate and the Demands of Counter-Speech”, British Journal of Political Science , 51(3): 924–939. doi:10.1017/S000712341900053X
• –––, forthcoming a, “The Ethics of Social Media: Why Content Moderation is a Moral Duty”, Journal of Practical Ethics .
• Howard, Jeffrey W. and Robert Simpson, forthcoming b, “Freedom of Speech”, in Issues in Political Theory , fifth edition, Catriona McKinnon, Patrick Tomlin, and Robert Jubb (eds), Oxford: Oxford University Press.
• Husak, Douglas N., 1985, “What Is so Special about [Free] Speech?”, Law and Philosophy , 4(1): 1–15. doi:10.1007/BF00208258
• Jacobson, Daniel, 2000, “Mill on Liberty, Speech, and the Free Society”, Philosophy & Public Affairs , 29(3): 276–309. doi:10.1111/j.1088-4963.2000.00276.x
• Kendrick, Leslie, 2013, “Speech, Intent, and the Chilling Effect”, William & Mary Law Review , 54(5): 1633–1692.
• –––, 2017, “Free Speech as a Special Right”, Philosophy & Public Affairs , 45(2): 87–117. doi:10.1111/papa.12087
• Klonick, Kate, 2018, “The New Governors”, Harvard Law Review 131: 1589–1670.
• Knight First Amendment Institute v. Trump 928 F.3d 226 (2019).
• Kramer, Matthew H., 2021, Freedom of Expression as Self-Restraint , Oxford: Oxford University Press.
• Lakier, Genevieve, 2015, “The Invention of Low-Value Speech”, Harvard Law Review , 128(8): 2166–2233.
• Landemore, Hélène, 2013, Democratic Reason: Politics, Collective Intelligence, and the Rule of the Many , Princeton/Oxford: Princeton University Press.
• Langton, Rae, 1993, “Speech Acts and Unspeakable Acts”, Philosophy & Public Affairs , 22(4): 293–330.
• –––, 2018, “The Authority of Hate Speech”, in Oxford Studies in Philosophy of Law (Volume 3), John Gardner, Leslie Green, and Brian Leiter (eds.), Oxford: Oxford University Press: ch. 4. doi:10.1093/oso/9780198828174.003.0004
• Lazar, Seth, forthcoming, “Legitimacy, Authority, and the Public Value of Explanations”, in Oxford Studies in Political Philosophy (Volume 10), Steven Wall (ed.), Oxford: Oxford University Press.
• –––, forthcoming, Connected by Code: Algorithmic Intermediaries and Political Philosophy, Oxford: Oxford University Press.
• Leiter, Brian, 2016, “The Case against Free Speech”, Sydney Law Review , 38(4): 407–439.
• Lepoutre, Maxime, 2021, Democratic Speech in Divided Times , Oxford/New York: Oxford University Press.
• MacKinnon, Catharine A., 1984 [1987], “Not a Moral Issue”, Yale Law & Policy Review , 2(2): 321–345. Reprinted in her Feminism Unmodified: Discourses on Life and Law , Cambridge, MA: Harvard University Press, 1987, 146–162 (ch. 13).
• Macklem, Timothy, 2006, Independence of Mind , Oxford/New York: Oxford University Press. doi:10.1093/acprof:oso/9780199535446.001.0001
• Maitra, Ishani, 2009, “Silencing Speech”, Canadian Journal of Philosophy , 39(2): 309–338. doi:10.1353/cjp.0.0050
• Maitra, Ishani and Mary Kate McGowan, 2007, “The Limits of Free Speech: Pornography and the Question of Coverage”, Legal Theory , 13(1): 41–68. doi:10.1017/S1352325207070024
• Matsuda, Mari J., 1989, “Public Response to Racist Speech: Considering the Victim’s Story Legal Storytelling”, Michigan Law Review , 87(8): 2320–2381.
• Matsuda, Mari J., Charles R. Lawrence, Richard Delgado, and Kimberlè Williams Crenshaw, 1993, Words That Wound: Critical Race Theory, Assaultive Speech, and the First Amendment (New Perspectives on Law, Culture, and Society), Boulder, CO: Westview Press. Reprinted 2018, Abingdon: Routledge. doi:10.4324/9780429502941
• McGowan, Mary Kate, 2003, “Conversational Exercitives and the Force of Pornography”, Philosophy & Public Affairs , 31(2): 155–189. doi:10.1111/j.1088-4963.2003.00155.x
• –––, 2019, Just Words: On Speech and Hidden Harm , Oxford: Oxford University Press. doi:10.1093/oso/9780198829706.001.0001
• McMahan, Jeff, 2009, Killing in War , (Uehiro Series in Practical Ethics), Oxford: Clarendon Press. doi:10.1093/acprof:oso/9780199548668.001.0001
• Milton, John, 1644, “Areopagitica”, London. [ Milton 1644 available online ]
• Meiklejohn, Alexander, 1948, Free Speech and Its Relation to Self-Government , New York: Harper.
• –––, 1960, Political Freedom: The Constitutional Powers of the People , New York: Harper.
• Mill, John Stuart, 1859, On Liberty , London: John W. Parker and Son. [ Mill 1859 available online ]
• Nagel, Thomas, 2002, Concealment and Exposure , New York: Oxford University Press.
• Pallikkathayil, Japa, 2020, “Free Speech and the Embodied Self”, in Oxford Studies in Political Philosophy (Volume 6), David Sobel, Peter Vallentyne, and Steven Wall (eds.), Oxford: Oxford University Press, 61–84 (ch. 3). doi:10.1093/oso/9780198852636.003.0003
• Parekh, Bhikhu, 2012, “Is There a Case for Banning Hate Speech?”, in The Content and Context of Hate Speech: Rethinking Regulation and Responses , Michael Herz and Peter Molnar (eds.), Cambridge/New York: Cambridge University Press, 37–56. doi:10.1017/CBO9781139042871.006
• Post, Robert C., 1991, “Racist Speech, Democracy, and the First Amendment Free Speech and Religious, Racial, and Sexual Harassment”, William and Mary Law Review , 32(2): 267–328.
• –––, 2000, “Reconciling Theory and Doctrine in First Amendment Jurisprudence Symposium of the Law in the Twentieth Century”, California Law Review , 88(6): 2353–2374.
• –––, 2009, “Hate Speech”, in Hare and Weinstein 2009: 123–138 (ch. 7). doi:10.1093/acprof:oso/9780199548781.003.0008
• –––, 2011, “Participatory Democracy as a Theory of Free Speech: A Reply Replies”, Virginia Law Review , 97(3): 617–632.
• Quong, Jonathan, 2011, Liberalism without Perfection , Oxford/New York: Oxford University Press. doi:10.1093/acprof:oso/9780199594870.001.0001
• R v. Oakes , 1 SCR 103 (1986).
• Rawls, John, 2005, Political Liberalism , expanded edition, (Columbia Classics in Philosophy), New York: Columbia University Press.
• Raz, Joseph, 1991 [1994], “Free Expression and Personal Identification”, Oxford Journal of Legal Studies , 11(3): 303–324. Collected in his Ethics in the Public Domain: Essays in the Morality of Law and Politics , Oxford: Clarendon Press, 146–169 (ch. 7).
• Redish, Martin H., 1982, “Value of Free Speech”, University of Pennsylvania Law Review , 130(3): 591–645.
• Rubenfeld, Jed, 2001, “The First Amendment’s Purpose”, Stanford Law Review , 53(4): 767–832.
• Scanlon, Thomas, 1972, “A Theory of Freedom of Expression”, Philosophy & Public Affairs , 1(2): 204–226.
• –––, 1978, “Freedom of Expression and Categories of Expression ”, University of Pittsburgh Law Review , 40(4): 519–550.
• –––, 2008, “Rights and Interests”, in Arguments for a Better World: Essays in Honor of Amartya Sen , Kaushik Basu and Ravi Kanbur (eds), Oxford: Oxford University Press, 68–79 (ch. 5). doi:10.1093/acprof:oso/9780199239115.003.0006
• –––, 2013, “Reply to Wenar”, Journal of Moral Philosophy 10: 400–406
• Schauer, Frederick, 1978, “Fear, Risk and the First Amendment: Unraveling the Chilling Effect”, Boston University Law Review , 58(5): 685–732.
• –––, 1982, Free Speech: A Philosophical Enquiry , Cambridge/New York: Cambridge University Press.
• –––, 1985, “Slippery Slopes”, Harvard Law Review , 99(2): 361–383.
• –––, 1993, “The Phenomenology of Speech and Harm”, Ethics , 103(4): 635–653. doi:10.1086/293546
• –––, 2004, “The Boundaries of the First Amendment: A Preliminary Exploration of Constitutional Salience”, Harvard Law Review , 117(6): 1765–1809.
• –––, 2009, “Is It Better to Be Safe than Sorry: Free Speech and the Precautionary Principle Free Speech in an Era of Terrorism”, Pepperdine Law Review , 36(2): 301–316.
• –––, 2010, “Facts and the First Amendment”, UCLA Law Review , 57(4): 897–920.
• –––, 2011a, “On the Relation between Chapters One and Two of John Stuart Mill’s On Liberty ”, Capital University Law Review , 39(3): 571–592.
• –––, 2011b, “Harm(s) and the First Amendment”, The Supreme Court Review , 2011: 81–111. doi:10.1086/665583
• –––, 2015, “Free Speech on Tuesdays”, Law and Philosophy , 34(2): 119–140. doi:10.1007/s10982-014-9220-y
• Shiffrin, Seana Valentine, 2014, Speech Matters: On Lying, Morality, and the Law (Carl G. Hempel Lecture Series), Princeton, NJ: Princeton University Press.
• Simpson, Robert Mark, 2016, “Defining ‘Speech’: Subtraction, Addition, and Division”, Canadian Journal of Law & Jurisprudence , 29(2): 457–494. doi:10.1017/cjlj.2016.20
• –––, 2021, “‘Lost, Enfeebled, and Deprived of Its Vital Effect’: Mill’s Exaggerated View of the Relation Between Conflict and Vitality”, Aristotelian Society Supplementary Volume , 95: 97–114. doi:10.1093/arisup/akab006
• Southeastern Promotions Ltd., v. Conrad , 420 U.S. 546 (1975).
• Sparrow, Robert and Robert E. Goodin, 2001, “The Competition of Ideas: Market or Garden?”, Critical Review of International Social and Political Philosophy , 4(2): 45–58. doi:10.1080/13698230108403349
• Stone, Adrienne, 2017, “Viewpoint Discrimination, Hate Speech Laws, and the Double-Sided Nature of Freedom of Speech”, Constitutional Commentary , 32(3): 687–696.
• Stone, Geoffrey R., 1983, “Content Regulation and the First Amendment”, William and Mary Law Review , 25(2): 189–252.
• –––, 1987, “Content-Neutral Restrictions”, University of Chicago Law Review , 54(1): 46–118.
• –––, 2004, Perilous Times: Free Speech in Wartime from the Sedition Act of 1798 to the War on Terrorism , New York: W.W. Norton & Company.
• Strauss, David A., 1991, “Persuasion, Autonomy, and Freedom of Expression”, Columbia Law Review , 91(2): 334–371.
• Strossen, Nadine, 2018, Hate: Why We Should Resist It With Free Speech, Not Censorship , New York: Oxford University Press
• Sunstein, Cass R., 1986, “Pornography and the First Amendment”, Duke Law Journal , 1986(4): 589–627.
• –––, 1989, “Low Value Speech Revisited Commentaries”, Northwestern University Law Review , 83(3): 555–561.
• –––, 1993, Democracy and the Problem of Free Speech , New York: The Free Press.
• –––, 2017, #Republic: Divided Democracy in the Age of Social Media , Princeton, NJ: Princeton University Press.
• Tadros, Victor, 2012, “Duty and Liability”, Utilitas , 24(2): 259–277.
• Turner, Piers Norris, 2014, “‘Harm’ and Mill’s Harm Principle”, Ethics , 124(2): 299–326. doi:10.1086/673436
• Tushnet, Mark, Alan Chen, and Joseph Blocher, 2017, Free Speech beyond Words: The Surprising Reach of the First Amendment , New York: New York University Press.
• Volokh, Eugene, 2011, “In Defense of the Marketplace of Ideas/Search for Truth as a Theory of Free Speech Protection Responses”, Virginia Law Review , 97(3): 595–602.
• Vredenburgh, Kate, 2022, “The Right to Explanation”, Journal of Political Philosophy , 30(2): 209–229. doi:10.1111/jopp.12262
• Waldron, Jeremy, 1987, “Mill and the Value of Moral Distress”, Political Studies , 35(3): 410–423. doi:10.1111/j.1467-9248.1987.tb00197.x
• –––, 2012, The Harm in Hate Speech (The Oliver Wendell Holmes Lectures, 2009), Cambridge, MA: Harvard University Press.
• Weinstein, James, 2011, “Participatory Democracy as the Central Value of American Free Speech Doctrine”, Virginia Law Review , 97(3): 491–514.
• West Virginia State Board of Education v. Barnette 319 U.S. 624 (1943).
• Whitten, Suzanne, 2022, A Republican Theory of Free Speech: Critical Civility , Cham: Palgrave Macmillan. doi:10.1007/978-3-030-78631-1
• Whitney, Heather M. and Robert Mark Simpson, 2019, “Search Engines and Free Speech Coverage”, in Free Speech in the Digital Age , Susan J. Brison and Katharine Gelber (eds), Oxford: Oxford University Press, 33–51 (ch. 2). doi:10.1093/oso/9780190883591.003.0003
• West, Caroline, 2004 [2022], “Pornography and Censorship”, The Stanford Encyclopedia of Philosophy (Winter 2022 edition), Edward N. Zalta and Uri Nodelman (eds.), URL = < https://plato.stanford.edu/archives/win2022/entries/pornography-censorship/ >.

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• International Covenant on Civil and Political Rights (ICCPR) , adopted: 16 December 1966; Entry into force: 23 March 1976.
• Free Speech Debate
• Knight First Amendment Institute at Columbia University
• van Mill, David, “Freedom of Speech”, Stanford Encyclopedia of Philosophy (Winter 2023 Edition), Edward N. Zalta & Uri Nodelman (eds.), URL = < https://plato.stanford.edu/archives/win2023/entries/freedom-speech/ >. [This was the previous entry on this topic in the Stanford Encyclopedia of Philosophy – see the version history .]

ethics: search engines and | hate speech | legal rights | liberalism | Mill, John Stuart | Mill, John Stuart: moral and political philosophy | pornography: and censorship | rights | social networking and ethics | toleration

Acknowledgments

I am grateful to the editors and anonymous referees of this Encyclopedia for helpful feedback. I am greatly indebted to Robert Mark Simpson for many incisive suggestions, which substantially improved the entry. This entry was written while on a fellowship funded by UK Research & Innovation (grant reference MR/V025600/1); I am thankful to UKRI for the support.

Copyright © 2024 by Jeffrey W. Howard < jeffrey . howard @ ucl . ac . uk >

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Emory Law News Center

303 creative: free speech reigns, even in the marketplace.

The Supreme Court has taken an enthusiastic role in enforcing free speech guarantees. In 303 Creative LLC v. Elenis , the Court made clear that customized website design is “pure speech,” and that free speech protections trump antidiscrimination law, even when the speaker is acting in the marketplace.

Lorie Smith owns 303 Creative LLC, a website and graphic design business in Colorado. She decided to expand into the wedding website design business, where she would offer “original, customized, and tailored websites” that “celebrate and convey the details of [the] unique love story” of the couples she would serve. She refuses to create websites that contradict her own views, for instance—as relevant here—by celebrating gay marriages. But this would violate the Colorado Anti-Discrimination Act, which prohibits public accommodations from denying “the full and equal enjoyment” of their goods and services to anyone based on, among other grounds, sexual orientation. (This is the same statute that appeared recently in Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018).)

The Supreme Court ruled that the First Amendment prohibits Colorado from forcing Smith to design websites with messages she disagrees with. This conclusion is located at the intersection of several important aspects of doctrine.

First, and most fundamentally, the First Amendment protects one’s availability to oppose gay marriage—and to say that one opposes gay marriage because of one’s religion. But the principle is of course broader: there’s nothing in this opinion that’s specific to gay marriage, or to religion at all. One might as well assume the case involved an atheist who opposed interracial marriage for purely secular racist reasons. This is a pure free-speech case, so it doesn’t matter what the website designer believed. It’s First Amendment canon that viewpoint discrimination is heavily disfavored, and indeed, the Court just reaffirmed recently, in Matal v. Tam (2017), that so-called “hate speech” is just as protected as any other kind of speech.

Second, free speech protections aren’t only about “speech.” They’re about any form of expressive activity, from words to photography, from Facebook “likes” to nude dancing, from flag-burning to flag-saluting. But this case involved a very traditional form of expression, which the Court characterized as “pure speech”: literally putting words and pictures together in a document.

Third, the First Amendment also protects against compelled speech. This is a principle that goes back to West Virginia Board of Education v. Barnette (1943), the Pledge of Allegiance case. But it has also shown up in freedom of association cases like Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston (1995) and Boy Scouts of America v. Dale (2000): parade organizers can design their own message, and expressive organizations can choose their leadership, even when state public accommodation laws mandate otherwise.

Fourth, whether the First Amendment doesn’t depend on whether one is speaking for money. Admittedly, commercial speech has long been treated as second-class speech, though in recent decades the Court has recognized that it, too, deserves substantial protection. But “commercial speech” doesn’t mean any speech that’s part of commerce—if that were the case, The New York Times and Harry Potter , which are sold in the marketplace, would have reduced protection. Also, organizational form doesn’t matter: speakers don’t “shed their First Amendment protections by employing the corporate form to disseminate their speech.”

But what of the anti-discrimination context? Justice Sotomayor’s dissent argued that public accommodation laws embody a deeply rooted “social contract”: “A business that chooses to sell to the public assumes a duty to serve the public without unjust discrimination. . . . The First Amendment does not entitle petitioners to a special exemption from a state law that simply requires them to serve all members of the public on equal terms. . . . Even if Smith believes God is calling her to do so through her for-profit company, the company need not hold out its goods or services to the public at large.” In Justice Sotomayor’s view, this was a case about regulating conduct , not speech; the commercial context reduced Smith’s protections, and so did the requirement to merely serve everyone equally.

This may be the most enduring legacy of 303 Creative : it clearly rejects the idea that the commercial context matters or that antidiscrimination values supersede free-speech values. After 303 Creative , public-accommodation antidiscrimination law is still constitutional—but it’s clear that whatever leeway the government may have to force people to serve others in a business context, it can’t force them to speak.

— Alexander Volokh , associate professor of law

• Explainer: Supreme Court hears oral arguments in 303 Creative case

On Dec. 5, 2022, the U.S. Supreme Court heard oral arguments in 303 Creative v. Elenis , an important case for free speech and religious liberty. Since 2016, Lorie Smith, founder of the web design firm 303 Creative , has been in the process of challenging a Colorado law that violates her First Amendment rights. It is the same law that was used to target Jack Phillips and which led to the 2018 Masterpiece Cakeshop v. Colorado Civil Rights Commission case. In that case, the court ruled favorably for Jack Phillips on narrow grounds but failed to address the underlying conflict between anti-discrimination laws and free speech rights.

A decision in this landmark case involving 303 Creative is expected in May or June of 2023.

What is this case about?

Like Phillips, and like Barronelle Stutzman of the Arlene’s Flowers Inc. v. Washington case, Lorie Smith is a creative professional who serves anyone through her business. She has created all kinds of custom websites for all types of people, but she refuses to use her “design skills and creativity to express messages that violate her deeply held religious convictions.” 

The state of Colorado views Smith’s work as a public accommodation, and thus, it is subject to Colorado’s Anti-Discrimination Act, which prohibits discrimination, including refusal of service, against any protected class, including sexual orientation or gender identity. This puts Smith’s desire to run her business according to her beliefs in direct conflict with Colorado’s law. 

Though the results of this case certainly impact religious liberty, the primary issue of this case is one of free speech. The central question before the court is “whether applying a public-accommodation law to compel an artist to speak or stay silent violates the free speech clause of the First Amendment.”

What arguments were made?

Kristen Waggoner, CEO, president, and general counsel of Alliance Defending Freedom, argued on Smith and 303 Creative’s behalf. Her central argument was that the enforcement of Colorado’s Anti-Distcrimination Act against Smith violates her first amendment free speech rights by forcing her to create speech inconsistent with her religious beliefs. The argument went to great lengths to demonstrate that Smith’s decisions in what projects she will take on are not based on who is requesting her services but rather what message the work will convey.

As Supreme Court analyst Amy Howe explains , “This means . . . that she would ‘happily’ design graphics for an LGBTQ customer who runs an animal shelter. But she will not take on commissions that would be inconsistent with her Christian beliefs—including, she says, by promoting same-sex marriage—because a custom wedding website would ‘express approval of the couple’s marriage.’”

Furthering this idea that the message rather than the individual is central to the decision, in the argument, Waggoner concluded that Smith would not create a website for a hypothetical heterosexual couple who wanted to share their love story and include details of their relationship beginning with an affair and progressing after divorces because she believes that divorce and extramarital sex are wrong.

Both the Colorado solicitor general and the U.S. deputy attorney general argued that the Colorado law “merely regulates sales, rather than the products or services being sold, and therefore does not require or bar any speech.” The state argued that Smith is not being forced to create anything, but that whatever she decides to create must be available to be purchased by anyone. The arguments also focused on how a potential ruling could impact similarly suited circumstances where the individual does not want to serve those entering into an interracial marriage or a marriage between people with disabilities. 

Why does this case matter?

This case has significant implications for the free speech of all people. If the court were to rule against Smith, it would establish a precedent that cuts to the core of our nation’s fabric. The First Amendment protects free speech—even when that speech is unpopular. 

Beyond that, for us, as Christians, our beliefs on matters of marriage and gender are core to our convictions, pointing to God’s design and the living picture of Christ and his Church. Throughout the argument, it was apparent that the justices were operating from vastly different worldviews and perspectives, with several justices seemingly unaware of the centrality of this belief to the Christian faith.

As ERLC President Brent Leatherwood said today:

Christians have, for 2,000 years, said that marriage is a picture of the gospel. It was clear from today’s oral arguments that several justices have never encountered this notion on a prior occasion. This is unfortunate as it is central to understanding why a Christian creative professional would object to being compelled by the state to say something contrary to this deeply held belief. That is why Justice Gorsuch was exactly right when he seemed to suggest this case is not about who is being served, ‘but about what’ the state of Colorado is forcing upon the speech creator. Today’s proceedings reveal why the Court should rule in favor of 303 Creative because to do otherwise would be tantamount to giving the government keys to a paver to roll right over private business-owning Christians who disagree with whatever the prevailing cultural notions about marriage and family happen to be fashionable at a given moment.

It is essential that people of faith not only have the ability to believe these fundamental truths but also to live them out in the public square. No one should be forced to sacrifice their most deeply held beliefs to participate in the marketplace and contribute to our society. The ERLC is urging the court to rule in favor of 303 Creative and will be preparing Christians and churches to respond to this important decision next year.

Anna Moneymaker/Getty Images

Hannah Daniel

Hannah Daniel serves as the ERLC’s director of public policy, representing the policy interests of Southern Baptists to government through advocacy and education. Originally from Tennessee, she graduated from Union University with a Bachelor of Science in business administration with a concentration in economics. She currently lives in Washington, D.C., … Read More

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Sign up for your free reminder for bringing hope to an election year, article 12: the future of ai.

We affirm that AI will continue to be developed in ways that we cannot currently imagine or understand, including AI that will far surpass many human abilities. God alone has the power to create life, and no future advancements in AI will usurp Him as the Creator of life. The church has a unique role in proclaiming human dignity for all and calling for the humane use of AI in all aspects of society.

We deny that AI will make us more or less human, or that AI will ever obtain a coequal level of worth, dignity, or value to image-bearers. Future advancements in AI will not ultimately fulfill our longings for a perfect world. While we are not able to comprehend or know the future, we do not fear what is to come because we know that God is omniscient and that nothing we create will be able to thwart His redemptive plan for creation or to supplant humanity as His image-bearers.

Genesis 1; Isaiah 42:8; Romans 1:20-21; 5:2; Ephesians 1:4-6; 2 Timothy 1:7-9; Revelation 5:9-10

Article 11: Public Policy

We affirm that the fundamental purposes of government are to protect human beings from harm, punish those who do evil, uphold civil liberties, and to commend those who do good. The public has a role in shaping and crafting policies concerning the use of AI in society, and these decisions should not be left to those who develop these technologies or to governments to set norms.

We deny that AI should be used by governments, corporations, or any entity to infringe upon God-given human rights. AI, even in a highly advanced state, should never be delegated the governing authority that has been granted by an all-sovereign God to human beings alone. 

Romans 13:1-7; Acts 10:35; 1 Peter 2:13-14

Article 10: War

We affirm that the use of AI in warfare should be governed by love of neighbor and the principles of just war. The use of AI may mitigate the loss of human life, provide greater protection of non-combatants, and inform better policymaking. Any lethal action conducted or substantially enabled by AI must employ 5 human oversight or review. All defense-related AI applications, such as underlying data and decision-making processes, must be subject to continual review by legitimate authorities. When these systems are deployed, human agents bear full moral responsibility for any actions taken by the system.

We deny that human agency or moral culpability in war can be delegated to AI. No nation or group has the right to use AI to carry out genocide, terrorism, torture, or other war crimes.

Genesis 4:10; Isaiah 1:16-17; Psalm 37:28; Matthew 5:44; 22:37-39; Romans 13:4

Article 9: Security

We affirm that AI has legitimate applications in policing, intelligence, surveillance, investigation, and other uses supporting the government’s responsibility to respect human rights, to protect and preserve human life, and to pursue justice in a flourishing society.

We deny that AI should be employed for safety and security applications in ways that seek to dehumanize, depersonalize, or harm our fellow human beings. We condemn the use of AI to suppress free expression or other basic human rights granted by God to all human beings.

Romans 13:1-7; 1 Peter 2:13-14

Article 8: Data & Privacy

We affirm that privacy and personal property are intertwined individual rights and choices that should not be violated by governments, corporations, nation-states, and other groups, even in the pursuit of the common good. While God knows all things, it is neither wise nor obligatory to have every detail of one’s life open to society.

We deny the manipulative and coercive uses of data and AI in ways that are inconsistent with the love of God and love of neighbor. Data collection practices should conform to ethical guidelines that uphold the dignity of all people. We further deny that consent, even informed consent, although requisite, is the only necessary ethical standard for the collection, manipulation, or exploitation of personal data—individually or in the aggregate. AI should not be employed in ways that distort truth through the use of generative applications. Data should not be mishandled, misused, or abused for sinful purposes to reinforce bias, strengthen the powerful, or demean the weak.

Exodus 20:15, Psalm 147:5; Isaiah 40:13-14; Matthew 10:16 Galatians 6:2; Hebrews 4:12-13; 1 John 1:7 

Article 7: Work

We affirm that work is part of God’s plan for human beings participating in the cultivation and stewardship of creation. The divine pattern is one of labor and rest in healthy proportion to each other. Our view of work should not be confined to commercial activity; it must also include the many ways that human beings serve each other through their efforts. AI can be used in ways that aid our work or allow us to make fuller use of our gifts. The church has a Spirit-empowered responsibility to help care for those who lose jobs and to encourage individuals, communities, employers, and governments to find ways to invest in the development of human beings and continue making vocational contributions to our lives together.

We deny that human worth and dignity is reducible to an individual’s economic contributions to society alone. Humanity should not use AI and other technological innovations as a reason to move toward lives of pure leisure even if greater social wealth creates such possibilities.

Genesis 1:27; 2:5; 2:15; Isaiah 65:21-24; Romans 12:6-8; Ephesians 4:11-16

Article 6: Sexuality

We affirm the goodness of God’s design for human sexuality which prescribes the sexual union to be an exclusive relationship between a man and a woman in the lifelong covenant of marriage.

We deny that the pursuit of sexual pleasure is a justification for the development or use of AI, and we condemn the objectification of humans that results from employing AI for sexual purposes. AI should not intrude upon or substitute for the biblical expression of sexuality between a husband and wife according to God’s design for human marriage.

Genesis 1:26-29; 2:18-25; Matthew 5:27-30; 1 Thess 4:3-4

Article 5: Bias

We affirm that, as a tool created by humans, AI will be inherently subject to bias and that these biases must be accounted for, minimized, or removed through continual human oversight and discretion. AI should be designed and used in such ways that treat all human beings as having equal worth and dignity. AI should be utilized as a tool to identify and eliminate bias inherent in human decision-making.

We deny that AI should be designed or used in ways that violate the fundamental principle of human dignity for all people. Neither should AI be used in ways that reinforce or further any ideology or agenda, seeking to subjugate human autonomy under the power of the state.

Micah 6:8; John 13:34; Galatians 3:28-29; 5:13-14; Philippians 2:3-4; Romans 12:10

Article 4: Medicine

We affirm that AI-related advances in medical technologies are expressions of God’s common grace through and for people created in His image and that these advances will increase our capacity to provide enhanced medical diagnostics and therapeutic interventions as we seek to care for all people. These advances should be guided by basic principles of medical ethics, including beneficence, non-maleficence, autonomy, and justice, which are all consistent with the biblical principle of loving our neighbor.

We deny that death and disease—effects of the Fall—can ultimately be eradicated apart from Jesus Christ. Utilitarian applications regarding healthcare distribution should not override the dignity of human life. Fur- 3 thermore, we reject the materialist and consequentialist worldview that understands medical applications of AI as a means of improving, changing, or completing human beings.

Matthew 5:45; John 11:25-26; 1 Corinthians 15:55-57; Galatians 6:2; Philippians 2:4

Article 3: Relationship of AI & Humanity

We affirm the use of AI to inform and aid human reasoning and moral decision-making because it is a tool that excels at processing data and making determinations, which often mimics or exceeds human ability. While AI excels in data-based computation, technology is incapable of possessing the capacity for moral agency or responsibility.

We deny that humans can or should cede our moral accountability or responsibilities to any form of AI that will ever be created. Only humanity will be judged by God on the basis of our actions and that of the tools we create. While technology can be created with a moral use in view, it is not a moral agent. Humans alone bear the responsibility for moral decision making.

Romans 2:6-8; Galatians 5:19-21; 2 Peter 1:5-8; 1 John 2:1

Article 2: AI as Technology

We affirm that the development of AI is a demonstration of the unique creative abilities of human beings. When AI is employed in accordance with God’s moral will, it is an example of man’s obedience to the divine command to steward creation and to honor Him. We believe in innovation for the glory of God, the sake of human flourishing, and the love of neighbor. While we acknowledge the reality of the Fall and its consequences on human nature and human innovation, technology can be used in society to uphold human dignity. As a part of our God-given creative nature, human beings should develop and harness technology in ways that lead to greater flourishing and the alleviation of human suffering.

We deny that the use of AI is morally neutral. It is not worthy of man’s hope, worship, or love. Since the Lord Jesus alone can atone for sin and reconcile humanity to its Creator, technology such as AI cannot fulfill humanity’s ultimate needs. We further deny the goodness and benefit of any application of AI that devalues or degrades the dignity and worth of another human being. 

Genesis 2:25; Exodus 20:3; 31:1-11; Proverbs 16:4; Matthew 22:37-40; Romans 3:23

Article 1: Image of God

We affirm that God created each human being in His image with intrinsic and equal worth, dignity, and moral agency, distinct from all creation, and that humanity’s creativity is intended to reflect God’s creative pattern.

We deny that any part of creation, including any form of technology, should ever be used to usurp or subvert the dominion and stewardship which has been entrusted solely to humanity by God; nor should technology be assigned a level of human identity, worth, dignity, or moral agency.

Genesis 1:26-28; 5:1-2; Isaiah 43:6-7; Jeremiah 1:5; John 13:34; Colossians 1:16; 3:10; Ephesians 4:24

Artistic Expression

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The U.S. Supreme Court has interpreted the First Amendment’s protection of speech to extend well beyond speeches and books to virtually anything that the human creative impulse can produce. The First Amendment embodies the belief that in a free and democratic society, individual adults must be free to decide for themselves what to read, write, paint, draw, compose, see, and hear.

Provocative and controversial art and in-your-face entertainment frequently test our commitment to this belief. Why oppose censorship when scenes of murder dominate video entertainment, when works of art can directly insult peoples’ religious beliefs, and when pornography abounds on the Internet? Why not let the majority’s morality and taste dictate what others can look at or listen to?

The answer is simple and timeless: A free society is based on an individual’s right to decide what art they want—or do not want—to see. Once you allow the government to censor one person, it has the power to censor you or something you like. The ACLU advocates for the principle that free expression for ourselves requires free expression for others. 

The Most Consequential First Amendment Case This Term

303 Creative v. Elenis isn’t about LGBTQ rights, as many people believe it to be, but about what constitutes speech.

On Monday the Supreme Court is going to hear oral arguments in what may well be the most consequential First Amendment case of the term. It will be cast as a culture-war case, as a fight between LGBTQ rights and free speech, but it’s not truly that. It’s something else, something far more significant.

The case is called 303 Creative v. Elenis , and the precise issue in the case is simple: “whether applying a public-accommodation law to compel an artist to speak or stay silent violates the free speech clause of the First Amendment.” But behind that simple statement is hidden a frankly bizarre legal doctrine, one that the Supreme Court has to address or it threatens the very nature of artistic freedom itself.

The petitioner in the case, Lorie Smith, is a website designer who, according to her Supreme Court brief , intends to design custom wedding websites, but she refuses to design websites that advance ideas or causes she opposes. As a theologically conservative Christian, she opposes same-sex marriage and will not design websites celebrating gay weddings, though she says she would work with gay clients on other, non-same-sex-marriage websites.

So far this all sounds like a rather conventional culture-war dispute, and the legal framework for deciding it is also quite conventional. As a general matter, if a vendor or company is providing a good or service—such as, say, a barbecue restaurant serving barbecue sandwiches—then it doesn’t enjoy a constitutional right to refuse service to customers on the basis of status or identity.

But though the state can demand that businesses provide goods and services to all comers without regard to race, sex, sexual orientation, and other protected categories, it cannot demand that businesses or individuals engage in speech proclaiming messages that they oppose, and, as Smith argues, designing websites is a form of speech.

Emma Green: The LGBTQ-rights movement is changing, and so is the Supreme Court

Two cases highlight the distinction between services and speech. In a 1968 case called Newman v. Piggie Park Enterprises , the Supreme Court said that it was “patently frivolous” to claim that the free-exercise clause of the First Amendment gave a sandwich-shop owner the right to refuse to serve Black customers.

The clear prohibition against compelled speech, by contrast, dates back to a 1943 case called West Virginia Board of Education v. Barnette . At the height of World War II, the Supreme Court held that West Virginia could not make students salute and pledge allegiance to the American flag. The decision contained arguably the most famous single sentence in American First Amendment jurisprudence: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein.”

Thus, the key question in 303 Creative should be whether Smith was denying a service on the basis of status or refusing to engage in speech because she disagreed with its message. If it’s the former, she loses. If it’s the latter, she wins. This was the essence of the debate around a similar 2017 case, Masterpiece Cakeshop v. Colorado Civil Rights Commission .

Netta Barak-Corren: How one Supreme Court decision increased discrimination against LGBTQ couples

Jack Phillips, the owner of Masterpiece Cakeshop, refused to design a custom wedding cake for a same-sex wedding, and the oral argument in the case was intensely focused on the line between service and expression. Was designing a custom cake really a constitutionally protected expressive act? Ultimately, the Court punted on that key question, deciding by a 7–2 margin that the Colorado Civil Rights Commission had violated Phillips’s rights to free exercise of religion by specifically targeting him because of his faith.

But here’s where 303 Creative gets truly strange. The Tenth Circuit Court of Appeals held that Smith was engaging in “pure speech” and that Colorado was compelling her speech, but it ruled for Colorado anyway. The reasoning in the majority opinion was extraordinary.

“This case does not present a competitive market,” the court said. “Rather, due to the unique nature of Appellants’ services, this case is more similar to a monopoly. The product at issue is not merely ‘custom-made wedding websites,’ but rather ‘custom-made wedding websites of the same quality and nature as those made by Appellants.’ In that market, only Appellants exist.”

Thus, because Smith possessed a monopoly over her own services, the state had a heightened interest in ensuring access to her work.

That is a truly remarkable legal doctrine, one that would vitiate the First Amendment rights of artists who sell their art in the marketplace. After all, every artist has a monopoly over the production of their own art (copyright complexities aside). Does that mean that they’re subject to heightened state regulation? Does that mean that Barnette is diminished when paying customers demand an artist’s work?

The case is so remarkable that I came out of legal semiretirement to participate. I filed an amicus brief on behalf of a number of conservative state family-policy organizations. In that brief I contrasted the right of major corporations to speak (or refuse to speak) in the marketplace of ideas with the now-contested right of a single artist to speak (or remain silent) with her own work. As I wrote, “If rights of conscience attach to corporations worth trillions, shouldn’t they also attach to a single artist whose alleged ‘monopoly’ is merely in the sweat of her own brow?”

Because the case involves a clash between Christian expression and the desire to protect LGBTQ Americans from discrimination, the culture-war frame is inevitable. But that framing distorts the analysis. This case isn’t about religious liberty versus gay rights but rather about freedom of expression for all artists, regardless of their views. And every artist is entitled to decide what they will say, regardless of the identity of the person demanding their art—or to not say anything at all.

Breaking News

SCOTUS NEWS

Justices will hear free-speech claim from website designer who opposes same-sex marriage.

Nearly four years after the Supreme Court declined to decide whether compelling a Colorado baker to bake a cake for same-sex couples would violate his right to freedom of speech, the justices agreed to take up a similar question in another case from Colorado, this time involving a website designer. The justices’ decision to grant review in 303 Creative LLC v. Elenis sets up yet another major ruling on the intersection between LGBTQ rights and religious beliefs.

The case that the court agreed on Tuesday to hear was filed by Lorie Smith, who owns a graphic design firm and wants to expand her business to include wedding websites. Because she opposes same-sex marriage on religious grounds, Smith does not want to design websites for same-sex weddings, and she wants to post a message on her own website to explain that. But a Colorado law prohibits businesses that are open to the public from discriminating against gay people or announcing their intent to do so.

Smith went to federal court, seeking a ruling that Colorado could not enforce its anti-discrimination law against her. The U.S. Court of Appeals for the 10th Circuit agreed that Smith’s “creation of wedding websites is pure speech,” and that Colorado law compels Smith to create speech that she would otherwise refuse. But the anti-discrimination law does not violate the Constitution in this case, the court of appeals concluded , because the law is narrowly tailored to the state’s interest in ensuring that LGBTQ customers have access to the unique services that Smith provides. Same-sex couples might be able to have their wedding websites designed by someone else, the court of appeals explained, but those customers “will never be able to obtain wedding-related services of the same quality and nature as those that” Smith offers.

After considering the case at four consecutive conferences, the justices agreed to take up Smith’s claim under the free speech clause of the First Amendment. They declined to review two other questions that Smith raised in her petition for review: whether requiring Smith to create custom websites for same-sex couples violates the First Amendment’s free exercise clause, and whether the Supreme Court should overrule its 1990 decision in Employment Division v. Smith , which held that government actions usually do not violate the free exercise clause as long as they are neutral and apply to everyone. The case nonetheless promises to be a major ruling because it may clarify when business owners who are engaged in expressive activities are entitled to religious-based exemptions from laws protecting civil rights.

Unlike Biden v. Texas , the case that the justices agreed to fast-track on Friday, involving the Biden administration’s efforts to end the Trump-era program known as the “remain in Mexico” policy, the justices did not set 303 Creative for argument during their April argument session or otherwise give any sign that they planned to expedite the briefing. The case will therefore presumably be argued during the 2022-23 argument session, joining the pair of cases involving the role of race in university admissions and the challenge to Alabama’s redistricting plan in what already promises to be another blockbuster term.

This article was originally published at Howe on the Court . 

Posted in Merits Cases

Cases: 303 Creative LLC v. Elenis

Recommended Citation: Amy Howe, Justices will hear free-speech claim from website designer who opposes same-sex marriage , SCOTUSblog (Feb. 22, 2022, 4:11 PM), https://www.scotusblog.com/2022/02/justices-will-hear-free-speech-claim-from-website-designer-who-opposes-same-sex-marriage/

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Christopher Jackson is a partner in Holland & Hart LLP's appellate practice group, in Denver. He has handled matters before the U.S. Supreme Court, most of the federal circuit courts, and in state appellate courts across the country. He can be reached at [email protected].

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In 303 Creative Decision, the Supreme Court Rules for Freedom of Speech

On friday, the supreme court delivered a smashing victory for free speech., john stonestreet heather peterson.

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On Friday, the Supreme Court delivered a smashing victory for free speech. Lorie Smith is the founder of 303 Creative, a graphic design company that, among other services, creates custom websites for weddings. Concerned that a Colorado law would force her to design websites for same-sex weddings or take on other projects that would violate her deeply held religious beliefs, Smith filed a pre-enforcement challenge, asking the court to weigh in on whether the law violated her freedom of speech and conscience.  

The state decided that   Lorie did not have the right to choose which messages she uses her talents to express . It even forbade her, for example, from posting a notice on her website stating she is unable to create websites that express messages contrary to her Christian beliefs, including websites that promote abortion services, celebrate same-sex marriages, or advance a transgender ideology. In July 2021, the 10th Circuit Court of Appeals ruled against Smith and for the state of Colorado.  

Friday, on the last day of the 2023 docket, the U.S. Supreme Court reversed that decision and ruled in favor of Lorie Smith. Writing for the majority , Justice Neil Gorsuch, explained:   

The First Amendment’s protections belong to all, not just to speakers whose motives the government finds worthy. In this case, Colorado seeks to force an individual to speak in ways that align with its views but defy her conscience about a matter of major significance. … Consistent with the First Amendment, the Nation’s answer is tolerance, not coercion. The First Amendment envisions the United States as a rich and complex place where all persons are free to think and speak as they wish, not as the government demands. Colorado cannot deny that promise consistent with the First Amendment.  

Kristen Waggoner, general counsel for Alliance Defending Freedom who argued the case before the Court, described the win in a press release:  

This is a win for all Americans. The government should no more censor Lorie for speaking consistent with her beliefs about marriage than it should punish an LGBT graphic designer for declining to criticize same-sex marriage. If we desire freedom for ourselves, we must defend it for others.  

It’s not yet clear what implications this decision will hold for others, such as Colorado cake artist Jack Phillips, who are being forced to choose between their businesses and their deeply held religious beliefs. However, unlike the 2018 Masterpiece Cakeshop case , this decision was far broader and clearly dealt with questions of speech, conscience, and government coercion. In the Masterpiece case, the Supreme Court smacked down the state of Colorado for showing clear and extensive animus toward Jack’s faith. The state civil rights commission responded by not only showing similar animus again, but by also allowing and enabling another citizen to harass Jack Phillips, beginning on the same day that Jack’s first case was approved to be heard by the Supreme Court, and continuing today.  

Already, voices as significant as dissenting Supreme Court justices and major media outlets have reported that, in the 303 Creative decision, the Court has allowed business owners to refuse service for LGBTQ people. That is simply not true. In fact, Justice Gorsuch specifically said as much in his majority opinion.   

Justice Sonia Sotomayor, however, repeated that falsehood anyway before articulating a revisionist history of LGBTQ rights. For example, she repeated falsehoods about the murder of Matthew Shepard, wrongly claimed that the Colorado law did not affect Lorie Smith’s rights “in any meaningful sense,” and neglected the condition established by Smith that she would not refuse service to anyone because of their sexual orientation.   

To the dissent, Justice Gorsuch retorted in the majority opinion , “It is difficult to read the dissent and conclude we are looking at the same case.”  

Lorie Smith never asked for the right to refuse service to a particular group of people. She asked not to be forced to produce speech that she did not agree with. That’s what the Court affirmed on Friday. It is important that, whenever possible, all Americans who are concerned about the rights of conscience, including the freedom of speech, correct the falsehoods about this decision.  

As Lorie Smith said in ADF’s press release,  

This is a victory not just for me but for all Americans across our great country—for those who share my beliefs  and  for those who hold different beliefs. Whether you’re an LGBT graphic designer, a Jewish calligrapher, an Atheist speechwriter, or a pro-life photographer, the government shouldn’t force any of us to say something we don’t believe. I love people and work with everyone, including those who identify as LGBT. For me, it’s always about what message is requested, never the person requesting. I hope that, regardless of what people think of me or my beliefs, everyone will celebrate that the court upheld the right for each of us to speak freely.  

Congratulations to ADF and to Lorie Smith.  

This Breakpoint was co-authored by Dr. Heather Peterson. For more resources to live like a Christian in this cultural moment, go to breakpoint.org.  

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A painting by Zehra Doğan of Nusaybin, Turkey destroyed by military forces

Freedom of speech and creativity are crucial for developing vibrant, pluralistic, and democratic societies. In nearly all corners of the globe, whether through political satire, a protest song, a poster or a doodle on a wall in a public space, artists remain creative and rebellious. Despite censorship — or perhaps because of it — unwieldy artists and curators continue to be at the forefront of the dangerous but necessary work of driving awareness and social change. Think of places like Hong Kong where an entire Wikipedia page is now dedicated to Art of the Umbrella Movement .

Yet throughout the world, freedom of speech and creativity continued to face acute threats in 2019. Whether through physical attack, legal prosecution, digital surveillance, detainment, or intimidation, artistic creativity continued to pose existential threats to the axis of dominant, hegemonic powers and states all around the world.

The past year proved that art continues to incite all manner of prohibition. In parts of the world such as Iran, Turkey, Saudi Arabia, Russia, and China artists were subjected to the censorship and physical intimidation that journalists have historically endured. In most of these countries, the rights of women, LGBTQ+ and other members of minority communities remain under continuous threat, especially in autocratic societies with few governmental checks and balances to protect artists and journalists.

In the West, censorship works differently. Due to the increasing prevalence of surveillance technologies and the consolidation of major technology firms such as those involved in the Facebook/WhatsApp/Instagram merger, censorship has become embedded into the digital infrastructure itself. While it may be simple and straightforward to identify unique cases of physical intimidation and/or the curtailing of creativity due to political content, it is much more difficult to track cultural and artistic censorship online where keywords and political content can be filtered through sophisticated artificial intelligence (AI) algorithms.

The brief list below shows that the silencing of cultural expression continues to happen in different forms all over the world. Contrary to popular opinion, censorship is not confined to dictatorships. Whether in autocratic or democratic countries, the Global North or the Global South, rich or poor countries, unlawful attacks against art and creativity proliferated in 2019.

  Anti-war artworks were censored from a major national touring exhibition at Queensland Gallery. Works by one of the nine exhibiting artists, Abdul Abdullah, a Muslim whose work addresses the politicization of Muslim identity within mainstream Australian culture, were removed by gallery staff without warning. The works were taken down after local city councilor, Martin Bella, led calls for their removal . The paintings depict Australian soldiers in full battle gear with smiley faces drawn over their images. According to Esther Anatolitis , executive director of the National Association of Visual Artists in Australia, the situation is “deeply unfair to the veterans and veterans’ groups who’ve been misled on work they never saw by an artist they never met.”

Part of what makes censorship of the Palestinian-led Boycott Divestment and Sanctions movement (the BDS movement seeks to end support of the state of Israel while it continues to oppress Palestinians) so troubling is that in 2019, many countries under pressure from Israel categorized the movement as anti-Semitic. In March, the Volkskundemuseum in Vienna had scheduled a talk featuring Ronnie Kasrils, a renowned South African anti-apartheid activist of Jewish descent, as part of a wider series of events associated with the annual Israeli Apartheid Week (IAW) . According to its website, Israeli Apartheid Week promotes lectures, film screenings, direct actions, cultural performances, poster campaigns, and other direct actions recognizing Palestinian struggles for self-determination. Organizers of the event claimed that the Israeli lobby pressured the Volkskundemuseum to cancel the talk .

Despite a 2000 UNESCO order demanding their protection, 10,000 medieval Armenian gravestones, known as khachkars , were destroyed earlier this year. Cultural observers say it is a remarkable erasure of cultural history and human artistic achievement. In February, following evidence from a forensic report reported on in Hyperallergic, the government of Azerbaijan was found to have ordered the destruction at least 89 medieval churches, 5,840 intricate cross-stones, and 22,000 tombstones in Nakhchivan, an autonomous republic situated in between Azerbaijan and Armenia.

An original Djulfa khachkar, one of a dozen survivors removed from Nakhichevan during or before the Soviet era, displayed at The Metropolitan Museum of Art’s Armenia! exhibit (September 22, 2018-January 13, 2019), on loan from Armenia’s Mother See of Holy Etchmiadzin (© Simon Maghakyan, courtesy Djulfa Virtual Memorial and Museum | Djulfa.com)

Brazil  

Early in 2019, under the leadership of the newly elected far-right President Jair Bolsonaro, the country literally dissolved its Ministry of Culture, the main source of art funding servicing a country of 214 million people. The policy decision predictably enraged many of the country’s artists and the staffs of art institutions, many of whom had existed on brink of precarity for quite some time already, but who are now facing especially acute existential threats to their programming . Since his election in January, Bolsonaro has also actively censored the media all the while denying the devastating impact of wildfires destroying Brazil’s rainforests through a disinformation campaign , censoring all art, culture and media that does not support his narrative.

In 2019, China ramped up a campaign of repression against the Uighurs , a Muslim minority group located in the northwest of the country in the Xinjiang region, where the state has been deploying an Orwellian mix of AI, facial recognition and “reeducation” camps. Alongside Beijing’s suppression of the Uighurs, China continues to block the publishing of information on a number of other issues including anything related to Tiananmen Square or Hong Kong independence — issues that remain at the forefront of online content policing in the world’s most populous country.

TikTok, the popular video-sharing platform founded in China, also stood accused this year of preventing users from posting content relating to the Uighurs. While Shutterstock, the US-based company that provides royalty-free stock images, photos, videos, and music on the internet, was found to have been blocking political image searches in order to comply with China’s strict rules on censorship.

In the visual arts, Hyperallergic reported in November that an exhibition by Chinese-American artist Hung Liu had been censored after local authorities in Beijing objected to some of the works and refused to issue import permits for others. According to the report, authorities voiced concerns about works that depicted the artist as a young fighter at the end of China’s Cultural Revolution. And earlier in the year, China’s boycott of a film festival in Taiwan helped raise the event’s international profile .

Artist Hung Liu in 2014 ( via Wikimedia )

In February, a panel featuring the artist Luke Turner was cancelled at the Berlin gallery Robert Grunenberg due to what was the artist claimed was “far-right intimidation.” It happened after the artist withdrew from the last Athens Biennale, after Luke took issue with being exhibited alongside some artists who trolled him with anti-Semitic content online. And well, the cancelling of all manner of artists became a subject in 2019, along with it the hyper-polarization of meme culture and its role in spreading hate and violence online.

In the land of the Rhine, the German parliament condemned the Palestinian-led Boycott Divestment and Sanctions movement as anti-semitic after lawmakers passed a resolution saying the movement’s slogans recalled from Nazi propaganda. “It’s not only anti-Palestinian McCarthyism, it is a betrayal of international law, German democracy and the fight against real anti-Jewish racism,” BDS said after the resolution had passed.

In September, the city of Aachen withdrew its decision to award the Lebanese-American artist Walid Raad a €10,000 (approx. $10,900) prize, though one of its partners in the prize, the Association of Friends of the Ludwig Forum for International Art, decided to give the award to Raad despite the Mayor’s opposition. In the same month, the German jury of the Nelly Sachs book prize also withdrew its decision to award Kamila Shamsie the prize, citing her support for BDS as the reason. In June, the Berlin’s Jewish Museum Director resigned after criticism over a BDS-related tweet .

The Jewish Museum in Berlin (via Domonic Simpson’s Flickrstream )

In December, the art blog artportal.hu reported that officials in Budapest were considering abolishing the National Cultural Fund of Hungary, the country’s main source of funding for the arts. The move led to large public outcry with protestors calling on the government to reverse its decision, which it eventually did, restoring the National Cultural Fund, for now. Under Orban,

In November, the wealthy financier George Soros waved goodbye to the Central European University, a free and liberal university  he established in Budapest in 1991. After repeated attempts by Hungary’s far-right prime minister, Viktor Orbán, to paint the Hungarian-born philanthropist as a threat to Hungary, the CEU was forced to relocate .

In October, the Delhi High Court demanded that Facebook reveal the identities behind a #MeToo-inspired anonymous account that called out cases of sexual harassment and violence in India’s cultural sector. The account, @herdsceneand , had over 6,000 followers and at least 70 testimonials from survivors before officials asked Facebook for information on who was behind it.

In November, a massive and near-total shutdown of internet services in Iran was initiated after protests sparked by the announcement of hikes to petrol prices began across the country, resulting in the arrest and detainment of thousands. The popular Iranian-Kurdish singer, Mohsen Lorestani , was charged with “corruption on Earth” and of being a homosexual this past October, the latter charge which is punishable by death in Iran. In a country where women are still not allowed to sing solo, nor play in a symphony orchestra, government censorship continues to limit and in some cases threatens the lives of artists in Iran.

In November, Human Rights Watch’s Omar Shakir was deported from Israel for supporting a boycott of the country by the Palestinian-led BDS. The Israeli government’s decision to expel Shakir, a US citizen, was upheld by Israel’s top court in November after months of deliberations. “Despite my deportation today, the Israeli government has failed to muzzle Human Rights Watch or the human rights movement,” Shakir said at a press conference in Jerusalem after he was expelled.

In August, Israel’s decision to block the entry of congresswomen Ilhan Omar and Rashida Tlaib amid pressure from Donald Trump drew widespread criticism. Several commentators lambasted the decision to deny entry to the congresswomen, which the Israeli government attributed to the two freshmen lawmakers’ support for BDS.

A controversial section of  the Aichi Triennal was shuttered earlier this year for displaying work in an exhibition pertaining to so-called “comfort women”: former Korean sex slaves who were sold to the Japanese military during World War II . The portion of the show in question — titled  “After ‘Freedom of Expression?’ ” — looked critically at Japan’s history and eventually this criticism prompted officials to close the section.

In November, Artists at Risk assisted the Kenyan hip-hop MC and LGBTQ+ activist Grammo Suspect, Grace Munene, to safe haven residency in Barcelona after she was forced to flee her home for lyrics relating to her lesbian identity. After suffering repeated attacks, the MC faced discrimination and violent abuse from the police as well as local gangs. Performing in public songs like the single Our Love is Valid, in which she openly celebrates love for her same sex partner, made her a target in a country notoriously difficult for LGBTQ+, where same-sex marriage has been banned under the Constitution since 2010.

A controversy at Kyrgyzstan’s National Art Museum in Bishkek earlier this year culminated in threats of physical violence and intimation. The “Feminnale” exhibition at Kyrgyzstan’s National Art Museum in Bishkek explored the theme of economic independence for women, intentionally challenging gender norms in the country. But, as Human Rights Watch reported, “instead of treating the event as an opportunity to foster conversation, opponents have instigated an intense backlash, involving verbal abuse and death threats, the resignation of the museum’s director, removal of several artworks, and finally, calls for law enforcement to get involved. The country’s ministry of culture decried the exhibition as “scandalous.” Despite this, the museum’s director, Mira Dzhangaracheva, was forced to resign following threats to herself and staff, including threats she said to “tear me apart, to rape me.”  The exhibition, which opened on November 28, coincided with the annual campaign 16 Days of Activism Against Gender-Based Violence which took place in Kyrgyzstan and around the world.

Five members of a performance group were given one-year prison sentences at a Yangon court in October after they were charged with producing  “thangyat”, a traditional ensemble show that blends poetry and dancing with satire. The form has been used to mock the country’s leaders since the 19th century. The group, the Peacock Generation, were arrested in April and May after staging wildly popular performances on streets of Yangon that poked fun at the country’s powerful military.

In November, Hyperallergic reported on the censoring of a public installation by Adeela Sulema,  “The Killing Fields of Karachi,” which looked at the human impact of extrajudicial police killings through the account of one such murder given by the father of the victim. The work was installed for the 2019 Karachi Biennale , but mere hours after opening, it was taken down by men who claimed to be from the state intelligence office, on the grounds that it was disturbing a popular public area in Karachi.

Adeela Suleman’s outdoor installation, “The Killing Fields of Karachi” (nd) after it was damaged by state authorities (image courtesy of Adeela Suleman)

After years of efforts to control the media, education, and judicial sectors, the ruling Law and Justice party in Poland has now started targeting contemporary art institutions too.

Earlier this year it replaced the director of the CCA Ujazdowski Castle in Warsaw, Małgorzata Ludwisiak, with a new director handpicked by the ministry, ignoring its normal selection process. The new director, Piotr Bernatowicz, has been accused of platforming misogyny and anti-Semitism, prompting many to wonder whether a strike or boycott of one of Poland’s most respected institutions will ensue.

In April, tens of thousands of artists and activists from all over Poland staged an iconic banana-themed protest after feminist artwork by three well-known Polish feminist artists — Natalia LL, Katarzyna Kozyra, and the duo Karolina Wiktor and Aleksandra Kubiak — was pulled from the country’s National Gallery , prompting a nation-wide conversation about art and censorship.

The #bananagate protest (courtesy Joanna Warsza)

In June, violent clashes erupted at one of Kyiv’s oldest cinemas after plans to privatize it met resistance. Activists are claiming that new ownership would suppress queer and minority voices and stifle independent cinema . The country is also the site of an ongoing disinformation campaign being waged against a newly elected government at the center of a massive scandal involving US President Donald Trump.

On a positive note, the boundary-pushing Russian film and theater director and director of the Gogol Center, Kirill Serebrennikov, was released from house arrest earlier this year. In 2019, his nearly two year house arrest came to an end. Known for making films critical of the Russian political and religious elite, his case is proof that the Russian government is not afraid of using the court system to silence its critics. This year, however, he is releasing one of Russia’s most anticipated films, Petrov’s Flu, an adaption of the bestselling novel “The Petrovs In and Around the Flu” by Alexei Salnikov, which received two of the most important literature awards in Russia. The story revolves around a family in Yekaterinburg who experience mythical feelings during a flu epidemic.

In November of this year, Freemuse reported about the case Pablo Hasél ,real name Pablo Rivadulla, a rapper and a pro-communist who performs “forbidden songs” which Spanish authorities believe glorify terrorism. The Spanish High Court (Audiencia Nacional) found him guilty of the charge of “glorifying terrorism” in his songs and, therefore, found him in breach of Article 578 of the Spanish Criminal Code, which carries with it potential fines, bans from jobs in the public sector and even prison sentences. “Sending rappers to jail for song lyrics and outlawing political satire demonstrates how narrow the boundaries of acceptable online speech have become in Spain,” said Esteban Beltrán , Director of Amnesty International Spain, noting also that the number of people charged under Article 578 increased from three in 2011 to 39 in 2017 and nearly 70 people were convicted in the last two years alone.

Saudi Arabia

In November, two former Twitter employees were charged with spying on behalf of Saudi Arabia after it was revealed that the Saudi leadership implemented new and inventive ways to  stifle dissent. This news arrived after it was revealed in 2018 that the Washington Post Columnist Jamal Khashoggi had been murdered in a Saudi embassy in Istanbul.

According to the U.S. Justice Department , the two men involved in social media spying on behalf of the Saudi government — a U.S. citizen and a Saudi citizen — gave private information about more than 6,000 Twitter users, including regime critics, to Saudi officials in exchange for hundreds of thousands of dollars in gifts and a designer watches.

The artist Zehra Doğan , who spent more than two years in a Turkish prison over a painting deemed “terrorist propaganda,” was released earlier this year , an atypical bright spot in a country otherwise at bottom of artistic freedom indexes. The ongoing imprisonment of those like Osman Kavala , a civil society activist and cultural entrepreneur who has been languishing in a Turkish jail for more than two years, is evidence of the country’s continued pursuit of anyone with real or imagined ties to Fethullah Güllen, the US-based Turkish national accused by Turkish President Recep Tayyip Erdogan of orchestrating a failed 2016 military coup.

Also, the Kurds continue to suffer a policing of their culture under the guise of the modern Turkish state, but even for many non-Kurds the urge to self-censor is high, as Jennifer Hattam writes in a 2019 Hyperallergic article .

United States

Censorship in the US continued along hyper-polarized political lines. In September, the Richmond Arts and Culture Commission (RACC) prohibited artist Christy Chan from including sentences critical of President Trump in a public art project, entitled Inside Out , in which Chan collected over a thousand messages submitted by local residents to be projected on the exterior of the Richmond Civic Center as part of their Neighborhood Public Art Grant program. The content of the messages included personal and political messages submitted by public, and comments on the environment and immigration.

In June, a San Francisco school district voted to remove 1930s Works Progress Administration (WPA) murals at George Washington High Schoo l, murals which depict George Washington’s slaves and violence against Native Americans. In August, the school board voted to conceal the murals , which were created in fresco by Russian-American social realist painter Victor Arnautoff.

Meanwhile, advocacy groups in the US voiced concern after new visa policies adopted by the State Department in May now require almost all applicants to submit their social media profiles, email addresses, and phone numbers from the past five years. Civil rights group suggest that the State Department’s new measures will force artists to self-censor .

The artist Betty Tompkins also had another run-in with Instagram this year. After her account was suspended for violating Instagram’s terms of service in relation to posting sexually explicit work, she said that “Instagram has nominated themselves to be the online voice for the art world, and they’ve succeeded. You can’t be active in the art world without a voice on Instagram.”

United Kingdom

London is said to be the second most surveilled city in the world (behind Beijing), so it comes as no surprise that measures like counter-terrorism and public safety are used to curtail creative speech and expression. All across the UK, grime and drill artists continue to face bans from performing in venues across the country (except in extreme cases, suc as if Stormzy headlines Glastonbury . As a result, the Index on Censorship , which tracks the curtailing of freedom of speech and creativity around the world, described the limitation of cultural expression in the UK this year as “unprecedented.”

Dorian Batycka

Dorian Batycka is an independent curator, art critic, and DJ currently based Berlin. Previously, he was curator of contemporary art at Bait Muzna for Art Film (Muscat, Oman), assistant curator for the... More by Dorian Batycka

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Creativity and Freedom of Speech

In the light of recent events regarding art and creativity touching into sensible aspects of society, I have decided to put down a few thoughts about freedom of expression impacting artworks worldwide.

Many people still think freedom of expression should not go all the way to the limits or beyond, but freedom of expression is, in fact, about going beyond boundaries, challenging ideas and scrutinizing rhetorics as a way to pursue an open-minded and progressive society - traits that led humanity to where it is now: the 21st century boom of technology and innovation... or the information age as it is known.

The right to freedom of expression is a basic and fundamental human right as part of the international law, the Magna Carta pushed worldwide by western societies that were founded on classical liberal principles of liberty. Freedom of expression or freedom of speech is a necessary condition for achieving many other fundamental human rights. The right to artistic freedom of expression relates more specifically to creative forms of expression and the production of various forms of art.

We have seen in the recent years that in the name of security for "greater good", many liberties have been eroded, trampling down individual rights and freedoms.

One of the United States Founding Fathers, Benjamin Franklin, as being aware of the danger of liberty loss, once said:

And he was quite right - we already face some of these effects right now as increased security at the expense of liberty won't bring more security nor, let alone, liberty..., but it helps the freedom opponents to push their censorship more and more to win the battle.

Another surging danger for today's societies are the promotion of political correctness which puts equality above freedom thus censoring all forms of expression in an attempt to equalize and stifle our dynamic characters and stigmatizing those who go for the extra mile.

The Nobel prize winner in economics and social behaviour caught that very well in a few remarkable words:

And unfortunately, artists all over the world are trapped between political, religious, cultural and economic interests. History shows that time and time again, members of the creative community have been on the frontlines defending the right to speak freely. Members of the creative community, have stood up to promote freedom of speech and the freedom of the press. The result is a vibrant and robust marketplace of ideas. The free flow of information and ideas is essential to any healthy and progressive society.

The aspect of artistic freedom is crucial to any free nation. It is not ‘just’ about the artists’ rights to express themselves freely, it is also a question of the rights of citizens to access artistic expressions and take part in cultural life — and thus one of the key issues for democracy.

Whether you're an architect, a painter, a writer, an interior designer or just a CGI artist like me, you don't want to sacrifice your freedom if you exposed a controversial shape, a nude, or an idea just because others believe their feelings were hurt. We cannot walk in fear of hurting others' feelings if we, as a society, are looking for progress. This is a free world and if they don't like something, maybe they should look away as nobody is forcing those artistic creations or ideas upon them.

Here are a few examples of speech that are most often censored:

- Sexual speech . Sex in art and entertainment is the most frequent target of censorship crusades. Many examples come to mind. A painting of the classical statue of Venus de Milo was removed from a store because the managers of the shopping mall found its semi-nudity "too shocking." Hundreds of works of literature, from Maya Angelou's, " I Know Why the Caged Bird Sings to John Steinbeck's Grapes of Wrath", has been banned from public schools based on their sexual content.  A museum director was charged with a crime for including sexually explicit photographs by Robert Mapplethorpe in an art exhibit. The democratic law is, on the whole, the most speech-protective in the world -- but sexual expression is treated as a second-class citizen. No causal link between exposure to sexually explicit material and anti-social or violent behaviour has ever been scientifically established, in spite of many efforts to do so.

- Media violence(video games) . Today's calls for censorship are not motivated solely by morality and taste, but also by the widespread belief that exposure to images of violence  causes people to act in destructive ways. Pro-censorship forces, including many politicians, often cite a multitude of "scientific studies" that allegedly prove fictional violence leads to real-life violence. There is, in fact, virtually no evidence that fictional violence causes otherwise stable people to become violent. And if we suppressed material based on the actions of unstable people, no work of fiction or art would be safe from censorship. The only clear assertion that can be made is that the relationship between art and human behaviour is a very complex one. Violent and sexually explicit art and entertainment have been a staple of human cultures throughout the history since ever. Many human behavioralists believe that these themes have a useful and constructive societal role, serving as a tampon for individual aggression.

- Press speech . Of all the threats to our freedom of speech rights, the prior restraint of news publishing and broadcasting is the most serious. This form of censorship restrains expression before it actually takes place, rather than imposing civil penalties on it afterwards. It is so disfavored that Courts rarely find prior restraints constitutional. The press does not simply publish information about trials, but guards against the miscarriage of justice by subjecting the police, prosecutors, and judicial processes to extensive public scrutiny and criticism.

The protection of artistic expression is just as important for the development of democracy as the protection of media workers. It is frequently artists who, through music, visual arts or films, put the ‘needle in the eye’ and strike a chord with millions of people, some of them unable to read and with no access to self-expression.

Programme Manager Ole Reitov, who has worked as a consultant to the UN office during the preparation of a thorough report regarding this issue at the UN Human Rights Council in 2013, said: "Too many artists have been killed, attacked or imprisoned in recent years. Censorship legislation in many countries is neither respecting international conventions nor providing any options for artists and cultural producers to appeal.” Free expression is central to all other freedoms. As the change in our communities becomes more constant and as ideas, technologies and people are moving more rapidly within and among countries, our work promotes the right of all people to connect more deeply with others and find meaningful ways to participate. We should do this by supporting the creative and intellectual community more often.

Provocative and controversial art and "in your face" entertainment put our commitment to free speech to the test. Why should we oppose censorship when scenes of murder and mayhem dominate the TV screen, when works of art can be seen as a direct insult to peoples' religious beliefs, and when much sexually explicit material can be seen as degrading to women? Why not let the majority's morality and taste dictate what others can look at or listen to? The answer is simple and timeless: a free society is based on the principle that each and every individual has the right to decide what art or entertainment he or she wants -- or does not want -- to receive or create. Once you allow the government to censor someone else, you cede to it the power to censor you, or something you like... because censorship is like poison gas: a powerful weapon that can harm you when the wind shifts. Freedom of expression for ourselves requires freedom of expression for others. It is at the very heart of our democracy.

All persons enjoy the right to freedom of artistic expression and creativity, which includes the right to freely experience and contribute to artistic expressions and creations, through individual or joint practice, to have access to and enjoy the arts, and to disseminate their expressions and creations. The effects of art censorship or unjustified restrictions of the right to freedom of artistic expression and creativity are devastating. They generate important cultural, social and economic losses, deprive artists of their means of expression and livelihood, create an unsafe environment for all those engaged in the arts and their audiences, sterilize debates on human, social and political issues, hamper the functioning of democracy and most often also impede debates on the legitimacy of censorship itself.

In many cases, censorship is counterproductive in that it gives wider publicity to controversial artworks. However, the fear censorship generates in artists and art institutions often leads to self-censorship, which stifles art expression and impoverishes the public sphere. Artistic creativity demands an environment free from fear and insecurity.

A government that restricts freedom of speech also tends to have a chilling effect on their people's ability to offer fresh solutions to the country's problems. It also prevents people from exploring new ideas and expressing themselves in creative ways by means of research and the arts.

Here are a few recommendations that could help expressive creativity flourish in a prosper society:

- Artists and all those engaged in artistic activities should only be subject to general laws that apply to all people. Such laws shall be formulated with sufficient precision and in accordance with international human rights standards.

- States should abolish prior-censorship bodies or systems where they exist and use subsequent imposition of liability only when necessary by a court of law. Prior censorship should be a highly exceptional measure, undertaken only to prevent the imminent threat of grave irreparable harm to human life or property - like in the case of hate speech.

- States should abide by their obligation to protect artists as well as all citizens participating in artistic activities or dissemination of artistic expressions and creations from violence by third parties. States should de-escalate tensions when these arise, maintain the rule of law and protect freedoms of all kind, including artistic freedoms. The police should not charge artists and cultural institutions for the costs of their protection; The police should support artists who are threatened through legal support, in particular.

As an individual born under communism, I believe I'm pretty much aware of dangers coming from limiting freedom for the sake of the so-called higher moral purposes, like security or equality disguised in political correctness. The road to hell is paved with good intentions, but there is no higher moral purpose than freedom.

P.S.: this blog post was color censored.

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June 18, 2018

By Abby Placik and the Center for Art Law Team

Introduction: Writing on the Wall

From 2011 to the present, at least four major protest movements – Occupy Wall Street, Black Lives Matter, Deferred Action for Childhood Arrivals (“DACA”), and #MeToo – have emerged in the United States. To express their beliefs, political activists have used non-traditional artistic materials, “new media” — sidewalk chalk , light projections , and washable paint  to creatively circumvent local graffiti and vandalism statutes. Unlike the application of graffiti and street art, the use of non-traditional media is not intended to be permanent or damaging to property. Despite protesters’ attempts to evade graffiti and vandalism statutes, law enforcement has still charged protesters with graffiti, illegal advertising, and defacing public or private property, among other charges.

Should new media used in protest be protected as a form of free speech under the First Amendment? The First Amendment provides the same protection to artistic expression as it does to conduct that communicates cultural, political, religious, or other messages. New media used in protest are a type of artistic expression which communicates cultural, political, or religious ideas. The use of new media tends to be site-specific, for it depends upon public space for maximum impact of its message.

New media do not cleanly fit within the legal definitions of graffiti, street art, and vandalism. Although graffiti and street art may contain political speech, most jurisdictions do not extend First Amendment protection to graffiti and street art. First, new media leave a mark on public and private property. Second, many protesters use them on public or private property without authorization from the party responsible for the property. The degree of First Amendment protection afforded to an individual depends upon the jurisdiction in which he or she is located, and the media through which “speech” is expressed. While state penal codes have similarly written graffiti and vandalism statutes, there are subtleties from state to state that affect what jurisdictions deem to be graffiti or vandalism.

So is the use of new media an act of vandalism or a manifestation of free speech? Are all types of “graffiti” equally treated under federal and state statutes? The following explores whether new media used in protest fit within the legal associated definition of graffiti (e.g. aerosol paint, paste posters, etc.) – which has long been controversial and classified as criminal. This article also addresses the issue of First Amendment protection for new media in public space. Part I discusses the relationship between the First Amendment, artistic expression and content limitations. Part II provides an overview of time, place, and manner regulations on free speech and artistic expression. Part III looks at specific examples of how federal and state statutes define graffiti and vandalism. Part IV summarizes case law to clarify whether there is a difference between “damaging” or “defacing” another’s property. Part V explores recent and current examples of new media used in protest around the United States. Part V uses case law to illustrate how time, place, and manner restrictions affect applications for new media used in protest today.

Part I: Does the First Amendment Protect Artistic Expression ?

The First Amendment of the United States Constitution 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 [emphasis added]; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” Free speech and the press are fundamental constitutional rights that are protected by the Due Process Clause of the 14th Amendment from state impediments. “Speech” includes activities that are nonverbal. What is the extent of protection for constitutional rights of free speech and press? “[A]s a general matter, ‘the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.’” So how and does this apply to works of art?

The First Amendment does protect certain types of expressive conduct and nonverbal speech. This includes artistic expression, such as painting, music, poetry, and literature. As the Second Circuit has held, “paintings, photographs, prints and sculptures…always communicate some idea or concept to those who view it, and as such are entitled to First Amendment Protection.” For example, in Ecko.Complex LLC v. Bloomberg , a fashion company applied for a street permit for an outdoor art exhibition where artists would paint graffiti on mock subway cars. The City of New York revoked the fashion company’s permit on the grounds that it feared the graffiti demonstration would “incite” others to paint graffiti on actual subway cars. The court held that the City “acted not only unconstitutionally but also beyond its prescribed powers” in withholding the company’s permit. How might the federal, state, and local governments constitutionally place limits on artistic expression?

Limitations on free speech and press have to meet a certain test: “[w]here there is a significant encroachment upon personal liberty, the State may prevail only upon showing a subordinating interest which is compelling.” The federal government and state governments may circumscribe free speech the press through legislation. Freedom of speech and the press is subject to the police power of the states in order to maintain civil society. The First Amendment does not protect types of speech such as defamation, fighting words, obscenity, and child pornography. Another limitation to First Amendment protection of free speech is the “clear and present danger” doctrine first formulated in Schenck v. U.S . In Schenck , the Supreme Court held that free speech or written word should not be subject to restraint or punishment unless it presented a “clear and present danger.” In terms of artistic expression, the content limitations are defamation, fighting words, obscenity, child pornography and material that presents a “clear and present danger.”

Artistic expression is a type of speech protected under the First Amendment. Generally, federal, state, and local governments cannot restrict artistic expression based on its message, ideas, subject matter or content. However, federal, state, and local governments may implement limitations on artistic expression. These restrictions must have a compelling interest such as preventing an actual incitement to crime, a breach of the peace, and a social interest in morality. Nevertheless, as this Article will explain in Part II, governments may impose further restrictions on when, where and how protesters use artistic expression.

Part II: Time, Place, and Manner Restrictions

Since the First Amendment does not guarantee the right to communicate one’s views at any time, in any place, and in however manner, time, place, and manner regulations do not violate it. The amount of freedom in terms of time, place, and manner for free speech and artistic expression depends on the forum. There are three forums for expressing free speech and each has a different level of First Amendment protection: the traditional public forum, the designated public forum, and the nonpublic (i.e. private) forum. The government may implement time, place, and manner restrictions as long as it follows a test, as explained in Perry Education Association v. Perry Local Educators’ Association below.

In Perry Education Association v. Perry Local Educators’ Association, Justice White set out three types of forums: traditional public forums, designated forums, and nonpublic (i.e. private) forums. Traditional public forums are places, “which by tradition or by government fiat have been devoted to assembly and debate.” Traditional public forums include streets and parks. However, in the traditional public forum, federal and state governments may “enforce reasonable time, place, and manner regulations as long as the restrictions ‘are content-neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication.’” When government regulates speech in a traditional public forum, it may only restrict speech to serve substantial state interests, and the restriction must be finely tailored. In the nonpublic forum, there is “the right to make distinctions in access on the basis of subject matter and speaker identity…[and such distinctions are] compatible with the intended purpose of the property.”

Two seminal Supreme Court cases with regard to the scope of state regulations on free speech and forum analysis were decided in 1984. The first, Members of the City Council of the City of Los Angeles v. Taxpayers for Vincent , considers whether a local statute was too far reaching on it restrictions on free speech. In Taxpayers for Vincent , the City of Los Angeles and public officials sought to enforce a municipal ordinance prohibiting the posting of signs on public property.   A group of supporters for Roland Vincent, a Los Angeles City council candidate, and a sign company entered a contract to create the political support signs. Some of the signs were posted on public property. Following the municipal code, the City’s Bureau of Street Maintenance removed all posters attached to public property. Los Angeles argued that it had an interest in removing “visual clutter.” However, the Supreme Court held that Los Angeles’s total ban on signs on public property was too broad and entrenched upon use of an important medium for political expression, so it was struck down as unconstitutional.

Mahoney v. United States considers viewpoint discrimination based on a group’s religious beliefs. Reverend Patrick Mahoney and other protesters (“plaintiffs”) began preparations for a demonstration on the sidewalk of 1600 Pennsylvania Avenue, N.W., a traditional public forum. The plaintiffs planned to draw verbal and visual messages expressing their religious beliefs against abortion on the 1600 Block promenade with chalk. The Commander of the Metropolitan Police Department sent a letter informing the plaintiffs that chalking the 1600 Block promenade and sidewalks would be defacement of public property in violation of the District’s defacement statute.

The plaintiffs argued that the District of Columbia’s refusal to allow the protesters to engage in “chalk art” demonstrations on the 1600 Block promenade in front of the White House violated the First, Fourth, and Fifth Amendments of the U.S. Constitution, among other claims. Since the 1600 Block promenade is a traditional public forum, the federal government may implement time, place, and manner restrictions as long as they are content-neutral, narrowly tailored, and leave open other channels for communication. Citing Taxpayers for Vincent , the court noted that “the [District of Columbia] defacement statute is not subject to attack under this theory because it is not ‘unconstitutional in every conceivable application.’” In other words, the District of Columbia’s statute still allowed the plaintiffs to protest using other means (e.g. signs, banners, amplified sound). The court noted the federal government had a reasonable interest to protect public property from damage and defacement.

The federal government may also implement time, place, and manner restrictions as discussed in United States v. Murtari. John Murtari came to the James M. Hanley Federal Building in New York City and wrote on the pavement in chalk: “I ♥ Dom, Sen. Clinton Help Us.” Federal employees told Murtari to stop, but he did not and was placed under arrest, issued a summonses for violations and released. On a later date Murtari returned to the Federal Building, wrote several messages in chalk, and was arrested again. Even in a traditional public forum, the court noted that the federal government may implement time, place, and manner restrictions “if they are content neutral, are narrowly-tailored to serve a significant government interest, and leave open ample alternative channels for communication of information.” Therefore, the federal government may limit when, where, and how protesters use new media.

A recent example of a graffiti charge for protest art takes place in a very public forum — the Capitol. Natalie White is a feminist artist, well known for both self-portraits using giant Polaroid photography and performance pieces. Her works are recognized as a major voice for female empowerment. In July of 2016, White ventured on her own Equal Rights Amendment (“E.R.A.”) march from New York to Washington, D.C. When White reached the U.S. Capitol building, she painted “ERA NOW” with washable paint in large, red letters on the pavement. U.S. Capitol police arrested White and charged her with a misdemeanor for vandalising federal property. In January of 2017, White represented herself at the District of Columbia criminal court. The court found her guilty of defacing public property. The area in front the the Capitol is a traditional public forum, so the Government’s restriction must be content-neutral, narrowly tailored, and leave other means for communication.

Time, place, and manner restrictions apply to traditional public forums and the designated public forums. As illustrated in Perry , the federal, state, and local governments may impose these restrictions as long as they are content-neutral, narrowly tailored, and leave other means for communication. Both the federal government and state governments may implement these restrictions on when, where, and how protesters use new media. However, “other modes of communication” does not always leave open the best means for communication. All of the above cases involve written messages. Would courts rule differently if protesters used non-obscene images to express their speech? The Part III examines how federal and state laws define graffiti and vandalism.

Part III: How do Federal and State Laws Define Graffiti and Vandalism?

There is variety in federal and state law definitions of “graffiti” and “vandalism.” Some state statutes explicitly define graffiti, while others do not define it at all. In fact, the United States Code and the Code of Federal Regulations do not define “graffiti.” However, the Code of Federal Regulations defines “vandalism” as “destroying, injuring, defacing, or damaging property or real property.” Vandalism is prohibited in parks, in forests, and on public property, and the law applies “regardless of land ownership, on all lands and waters within a park area that are under the legislative jurisdiction of the United States.” There appears to be a difference amongst federal law and states in terms of defining a “thing” that defaces property and an unauthorized act of making a mark on property. Part II discusses select state graffiti and vandalism statutes.

Under the California Penal Code, “[defacing] with graffiti or other inscribed material” is a factor of the crime of vandalism. California Penal Code § 594 defines “graffiti or other inscribed material” as “any unauthorized inscription, word, figure, mark, or design that is written, marked, etched, scratched, drawn, or painted on real or personal property.” Anyone who “maliciously [defaces with graffiti or other inscribed material, damages or destroys] with respect to any personal property not his or her own, in cases other than those specified by state law, is guilty of vandalism.” According to the California Penal Code, “malice” and “maliciously” are defined as “a wish to vex, annoy, or injure another person, or an intent to do a wrongful act, established either by proof or presumption of the law.” While California’s definition of graffiti would include any medium that would leave a mark on property, to be an act of vandalism, a mark would have to be made with malicious intent.

Interestingly, “Making graffiti” is a statute under New York Penal Law. Under § 145.60, “graffiti” is defined as “the etching, painting, covering, drawing upon or otherwise placing of a mark upon public or private property with intent to damage such property.” In contrast to California, New York Penal Law defines “graffiti” as an act with intent to damage property. Furthermore, New York more specifically defines where the creation of graffiti is prohibited. New York law prohibits the making of graffiti “on any building, public or private, or any other property real or personal owned by any person, firm, or corporation or any public agency or instrumentality, without the express permission of the owner or operator of said property.” “Making graffiti” is a class A misdemeanor.

The D.C. Code Ann. § 22-3312.01 (West 2018) (i.e. Defacing public or private property) does not define “damage” or “deface.” Rather the law enumerates many prohibited actions. The law prohibits “all intrusions upon another’s property, regardless of motivation, that tangibly alter the appearance of the property.” Therefore, it is a strict liability criminal statute. In addition, writings or inscriptions upon another’s property are not protected by the First Amendment merely because someone wishes to express an idea. The statute has been used to “prosecute conduct, whether politically expressive or not, that tangibly altered the appearance of public property in the District–including the White House.” So, defacing public or private property in the District of Columbia means tangibly altering the appearance of another’s property.

New media used in protest are not used for the same purpose as graffiti–to damage or deface another’s property. Instead, protesters utilize new media to express their free speech. Nevertheless, some graffiti and vandalism statutes proscribe strict liability regardless of a person’s intent in marking another’s property. Furthermore, the forum where one chooses to express their free speech using new media is either an aggravating or mitigating factor. If the forum is a nonpublic/private forum, then it is an aggravating factor against using new media for free speech. If the forum is a traditional public forum, then it is a mitigating factor for using new media for free speech. Another issue in interpreting graffiti and vandalism statutes is the seemingly interchangeable use of “damage” and “defacement.”

Part IV: Damage or Defacement?

Does “damage” or “defacement” of public or private property share the same meaning? In California, writing with a pen constitutes “defacing,” despite the fact that it can be removed and does not permanently alter the surface. In New York, the “intent to damage” public or private property means the actor acted intentionally in placing graffiti on the property. Whether the defendant actually caused damage is irrelevant for purposes of charges making graffiti. The District of Columbia’s statute prohibits altering the appearance of property of another’s without his or her permission. The below cases shed some light on how courts have interpreted “damage” and “defacement.”

In Mackinney v. Nielsen , the Ninth Circuit clarified California Penal Code Section 594. Berkeley, California resident Christopher Mackinney wrote “a police state is more expensive than a welfare state–we guarantee it” on a public sidewalk with sidewalk chalk. Police officers saw Mackinney and told him that he would be arrested if he did not stop writing.   Mackinney refused to agree to stop writing and asserted his actions were legal. Officer Nielsen ordered the other officers to arrest Mackinney and charged him with violating California Penal Code Section 594, which made it illegal to (1) deface “with paint or any other liquid,” (2) damage or (3) destroy any real or personal property that is not one’s own. Because chalk was not a paint or any other liquid, Mackinney would have to be charged under damage. The Ninth Circuit stated, “[n]o reasonable person would think that writing with chalk would damage a sidewalk.” The court found that chalk did not damage the property.

After Mackinney v. Nielsen , the California legislature amended the phrase “defaces with paint or any other liquid” with and replaced it with “defaces with graffiti or other inscribed material.” In in re Nicholas Y. , a juvenile named Nicholas wrote “RTK” (i.e. The Right to Crime) on a glass window of a projection booth at a movie theater with permanent marker. The juvenile court held Nicholas had violated California Penal Code § 594. Nicholas appealed the decision to the Court of Appeals of the Second District in California. He argued that the evidence was insufficient to prove that he violated California Penal Code § 594. The court looked to the meaning of “deface” in the Oxford English Dictionary: “[t]o mar the face, features, or appearance of; to spoil or ruin the figure, form, or beauty of; to disfigure.” The court found that it “does not incorporate an element of permanence” and “the marring of the surface is no less a defacement because it is more easily removed,” so it affirmed the decision of the juvenile court.

Returning to United States v. Murtari (i.e. the case where the defendant chalking the James M. Hanley Federal Building in New York City), the officers charged him with violating 41 C.F.R. § 102-74.380(b), which states, “All persons entering in or on Federal property are prohibited from-…(b) Willfully destroying or damaging property.” The Government argued that the court should not adopt the Ninth Circuit view in Nicholas Y. , because the Southern District of New York had held that “provisions prohibiting ‘defacement’ could constitutionally be construed as prohibiting chalking on a public sidewalk.” In other words, defacement was not necessarily damage to property.

The Northern District of New York noted, although chalking could be interpreted as “defacement,” the federal regulation under which Murtari was charged did not prohibit “defacement,” but it prohibited “destroying” and “damaging” property. Government counsel argued that defacement of property is the equivalent of damage to property. Since there was no definition of “damage” in the Code of Federal Regulations, the court turned to New York law. It found that Murtari’s actions did not “damage” the property, even though he “defaced” the plaza with chalk. In several cases, “damage” and “defacement” of property were held to be two different actions, so the court held that Murtari did not violate federal law.

Nicholas Y . and Murtari reflect that jurisdictions do interpret “damage” and “defacement” of property to be two different ways of marking another’s property. “Damage” means general, physical harm to another’s property, which weakens its structure, diminishes its value, etc. “Defacement” is a specific type of physical harm to another’s property, in which the surface of the property is marked with material. As illustrated in Nicolas Y. and Murtari , jurisdictions take a more uniform stance on “damage”, but they vary on whether non-permanent “defacement” of another’s property is vandalism. This Article will examine new media used in protest recently to consider different jurisdictions’ struggles with graffiti and vandalism statutes.

Part V: New Media in Protest Now

Contemporary activists have experimented with new media in an effort to evade damage or defacement of public or private property violations. New media include chalk art , light projections , and washable paint . New media do not necessarily fit within graffiti and vandalism statutes, because they do not “damage” property but temporarily “deface” it. Nevertheless, despite activists’ inventive attempts, law enforcement has charged some individuals with violation of graffiti, vandalism, and other criminal laws. The federal government and state governments have not arrived at consensus as how to treat free speech using new media in protest.

In 2012, members of the Occupy L.A. movement organized a “Chalk Walk” during ArtWalk in Los Angeles to show support for eleven people who had been arrested the previous month for writing on the sidewalk. The event planners hoped to “celebrate [their] right to free speech and remind the Los Angeles Police Department (“LAPD”) and the city of Los Angeles that chalking is NOT a crime.” A main site of chalking was Central City Association headquarters, an advocacy organization for investment in downtown Los Angeles, which they viewed as the “lobby group of the 1%.” According to the LAPD, protesters had chalked streets and buildings. When tensions escalated between protesters and officers, police arrested seven people for vandalism. Protesters had used chalk to make inscriptions, words, figures, etc. on real property (e.g. sidewalks, buildings).

A similar event in New York illustrates the ways in which state statutes diverge. The Illuminator is an art-activist collective based in New York City that shines “projection-interventions” onto buildings, calling attention to current issues. The Illuminator has shone messages on the Trump International Hotel in Washington, D.C., the corner of Bowery and Prince Street in New York City, the Brooklyn Borough Hall in Brooklyn, New York and many other locations. In September 2014, The Illuminator protested the Metropolitan Museum of Art’s dedication of the David H. Koch Plaza, named after the conservative donor who gave $65 million for the plaza’s renovation. The group projected the messages “The Met*/*Brought to you by the Tea Party” and “KOCH = CLIMATE CHAOS/The Met is a museum, not an oil lobby” onto the side of the museum. Police arrested three members of The Illuminator’s projector and charged them for illegal advertising and confiscated the projector. The charges against the three members were later dropped.

Why didn’t law enforcement charge the group with graffiti? First, a light projection is not an etching, painting, covering, drawing, or a mark. Second, the Illuminator did not have the intent to damage the Met. Instead, law enforcement charged the three members with unlawfully posting advertisements – a seemingly possible though indirect description of the collective’s actions as an offense. Unlawfully posting advertisements is when a person who “having no right to do so nor any reasonable ground to believe that he has such right, he posts , paints or otherwise affixes to the property of another person any advertisement , poster, notice or other matter designed to benefit a person other than the owner of the property.” However, the members of the Illuminator did not post, paint or affix a notice or advertisement onto the museum. It seems officers cited the members of the Illuminator with unlawfully posting advertisements, because the projection-intervention did not fit into New York’s graffiti statute.

The above events are only a small sample of new media used in protest. Activists and demonstrators are creative and will find other new media to use in protest. So far, federal and state governments have not decided on a bright line rule on how to address protester’s use of new media. The federal and state governments will eventually need to confront this issue if and when protesters use a new medium to express their free speech in the traditional public forum, which clearly does not fit within graffiti and vandalism statutes.

Depending upon the forum, a protester’s use of new media can be either graffiti or vandalism or a manifestation of free speech. In the private forum, owners of the property may “make distinctions in access on the basis of subject matter and viewer identity,” whereas in the public forum, “these distinctions may be impermissible.” So in the private forum, owners of property may limit access to it based on the subject matter of the new media and the audience that would view it. However, in the public forum, owners of property may not be able to make such limitations on the use of new media. Of course, not all public property is a traditional public forum.

The state governments may place time, place, and manner restrictions on free speech as long as they are content-neutral, narrowly tailored, and leave open other modes of communication. In addition, “the state may reserve the forum for its intended purposes as long as the regulation on speech is reasonable and not an effort to suppress expression merely because public officials oppose the speaker’s view.” Therefore, federal and state statutes may even limit when, when, and how protesters use new media to express their free speech. Because federal and state statutes may restrict new media as long as there are other modes of communication, they may even limit the best means for communication. 

Although federal and state restrictions on new media appear to be facially neutral, they are not neutral on the type of artistic expression which is allowed for communication. The effectiveness of certain modes of artistic expression to communicate specific content cannot be ignored. Protesters choose a specific medium because its inherent qualities are most effective in communicating a message. An image is best seen rather than described. Even though the intent behind the use of new media is not the same as graffiti and vandalism, federal and state statutes make the use of new media illegal. Unsure about how to address these situations, local law enforcement has cited protesters with violating graffiti/vandalism illegal advertising statutes as well as issuing trespass notices. At some point, federal and state governments will need to resolve this issue.

Suggested Reading

• Daniel Mach, The Bold and the Beautiful: Art, Public Spaces, and the First Amendment . 72 N.Y.U. L. Rev. 383 (1997).
• Marie A. Failinger, Talking Chalk: Defacing the First Amendment in the Public Forum , 115 W. Va. L. Rev. 755 (2012).
• Elizabeth G. Gee, City Walls Can Speak: The Street Art Movement and Graffiti’s Place in First Amendment Jurisprudence , 20 Jeffrey S. Moorad Sports L.J. 209 (2013).
• Eugene Volokh, Sidewalk chalking and the law , THE WASHINGTON POST: THE VOLOKH CONSPIRACY (May 11, 2015), https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/05/11/sidewalk-chalking-and-the-law/?utm_term=.b41b79140b90 .
• MARK V. TUSHNET, ALAN K. CHEN & JOSEPH BLOCHER, FREE SPEECH BEYOND WORDS (2017).
• Corinne Segal, Projection artists bring light to social issues with attention-grabbing protests , PBS.ORG: PBS NEWS HOUR (Sep. 17, 2017, 2:44 PM), https://www.pbs.org/newshour/arts/projection-light-artists-protest .

About the Author: Abby Placik is a rising third-year law student at Case Western Reserve University (“CWRU”) School of Law. This fall, she will work in the Community Development Clinic and conduct research for the International Law Research Lab at CWRU. She has an A.B. in History of Art from Bryn Mawr College. 

From the Editors: The Author and the Center for Art thanks all the editors and contributors to this article for assistance.

Disclaimer: This article is for educational purposes only and is not meant to provide legal advice. Readers should not construe or rely on any comment or statement in this article as legal advice. For legal advice, readers should seek an attorney.

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A Business Can Decline Service Based on Its Beliefs, Supreme Court Rules – But What Will This Look Like in Practice?

Though the Supreme Court ruling on 303 Creative v. Elenis is clear, the decision's implications on freedom of speech and civil rights remain murky.

The Supreme Court and LGBTQ Rights

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Designing for all couples – or declining?

By Charles J. Russo, University of Dayton

At issue in one of this year’s most highly anticipated Supreme Court cases, 303 Creative v. Elenis , was what happens when someone’s free speech or beliefs conflict with others’ rights. Specifically, 303 Creative addressed whether a Colorado anti-discrimination law can require a designer who believes marriage is only between a man and a woman to create a wedding website for a same-sex couple.

Two years ago, the 10th Circuit Court of Appeals affirmed that the answer was “yes .”

But on June 30, 2023, a bitterly divided Supreme Court reversed that judgment , holding 6-3 that the free speech clause of the First Amendment prohibited state officials from requiring the designer to create a website that communicates a message with which she disagrees.

As a professor of law who pays particular attention to First Amendment issues involving freedom of religion and speech, I see the case highlighting tension between two competing fundamental interests – ones that clash routinely in 21st century America.

Compelled speech?

The underlying dispute involves graphic artist Lorie Smith, the founder and owner of a studio called 303 Creative . According to court documents, Smith will work with clients of any sexual orientation. However, she will not create content that goes against her religious beliefs, such as “that marriage is a union between one man and one woman.”

Conflict arose when Smith challenged Colorado’s Anti-Discrimination Act , under which it is discriminatory and illegal to refuse services to someone based on “disability, race, creed, color, sex, sexual orientation, marital status, national origin or ancestry.”

In 2016, Smith unsuccessfully sued the members of the state’s Civil Rights Commission and Colorado’s attorney general . She and her attorneys argued that creating a website counts as an act of speech, and so being required to prepare a same-sex wedding website would violate her First Amendment rights: The law would force her to speak, legally referred to as “compelled speech.”

Smith and her attorneys also claimed that requiring her to create a website would violate her First Amendment right to the free exercise of religion .

The federal trial court in Colorado rejected Smith’s attempt to block enforcement of the anti-discrimination law in 2019. When she appealed, a split 10th Circuit affirmed that Smith could not refuse to create websites for same-sex weddings, even if it would have gone against her beliefs. Protecting diverse viewpoints, in the court’s opinion , was a “good in and of itself,” but combating discrimination “is, like individual autonomy, ‘essential’ to our democratic ideals.”

In a lengthy dissent , the chief judge of the 10th Circuit focused on compelled speech. He criticized the panel for taking “the remarkable – and novel – stance that the government may force Ms. Smith to produce messages that violate her conscience.”

SCOTUS speaks

The Supreme Court agreed to hear Smith’s case but limited the issue to free speech, sidestepping the dispute over the free exercise of religion. The question before the court was “whether applying a public-accommodation law to compel an artist to speak or stay silent violates the Free Speech Clause of the First Amendment.”

Kent Nishimura | Los Angeles Times via Getty Images

Lorie Smith, center in pink, walks out of the Supreme Court on Dec. 5, 2022, after the high court heard oral arguments in her case.

Writing for the majority, Justice Neil Gorsuch noted that “First Amendment protections belong to all, not just to speakers whose motives the government finds worthy.”

Gorsuch reviewed the Supreme Court’s cases protecting the rights of individuals not to express themselves. In 1943’s West Virginia Board of Education v. Barnette , for example, the court declared that public officials could not compel students who were Jehovah’s Witnesses to salute the flag, because doing so violated their religious beliefs.

While noting the “vital role public accommodations laws play in realizing the civil rights of all Americans,” Gorsuch reasoned that Colorado could not “force an individual to speak in ways that align with its views but defy her conscience about a matter of major significance.”

Further, Gorsuch harshly criticized the dissenting justices’ argument that Colorado’s law focused on business owners’ conduct, not speech, contending that the dissent sidesteps a key question: whether a state can “force someone who provides her own expressive services to abandon her conscience and speak its preferred message instead?”

Justice Sonia Sotomayor, whose dissent was joined by Justice Elena Kagan and Justice Ketanji Brown Jackson , lamented the majority’s decision as a time when there is “backlash to the movement for liberty and equality for gender and sexual minorities.”

Sotomayor then argued that under Colorado’s anti-discrimination law, Smith’s “freedom of speech is not abridged in any meaningful sense, factual or legal.” If Smith wants to “advocate the idea that same-sex marriage betrays God’s laws,” Sotomayor made it clear that she can.

Sotomayor went on to decry the ruling for symbolically “mark(ing) gays and lesbians for second-class status.” Denying services to same-sex couples “reminds LGBT people of a painful feeling that they know all too well,” she wrote. “There are some public places where they can be themselves, and some where they cannot.”

Hyoung Chang | The Denver Post

Religious leaders and Colorado Attorney General Phil Weiser hold a press conference in Denver following the Supreme Court’s decision in 303 Creative LLC v. Elenis.

Questions ahead

To see how 303 Creative’s impact plays out, it is worth closely watching the parts of the U.S. with anti-discrimination statutes in place. As Justice Gorsuch noted, about half of all states have laws like Colorado’s that “ expressly prohibit discrimination based on sexual orientation.” More specifically, 22 states, plus the Virgin Islands and Washington, D.C. , offer various forms of protections for LGBTQ+ individuals – including retail stories, restaurants, parks, hotels, doctors’ offices and banks.

I believe 303 Creative presents a challenge for society to come to grips with the tension between two fundamental interests.

One is the Supreme Court’s affirmation of Smith’s key argument: that requiring her to prepare websites that go against her religious beliefs would violate her First Amendment right to freedom of speech.

The other is the interest of same-sex couples in hiring the services they wish – and simply to be treated equally in the eyes of the law, on par with any other potential customers.

Ensuring both freedom of speech and civil rights requires good-faith efforts at respect – and respect is a two-way street. However, exactly what this looks like will likely be the cause of more litigation to come.

Charles J. Russo , Joseph Panzer Chair in Education in the School of Education and Health Sciences and Research Professor of Law, University of Dayton

Tags: Supreme Court , LGBT rights

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