What Free Speech is Not


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So we know that speech encompasses many forms of expression and we also know that free speech is, generally, going to result in controversial and sometimes offenses statements. But is there anything that can be excluded? Is there anything that free speech is not? This all goes back to a question of rights – my rights end where yours begins, and just because I have a right (freedom) to express something, doesn’t mean that I am right (correct, morally or truthfully) to do so. Moreover, we are free to make choices but we are not free from the consequences of our choices.

What free speech is not.

Legally, we can’t commit slander or libel. We can’t (generally) advocate violence against people. And in other countries, you can’t commit blasphemy, speak against the government, or say otherwise mean things. The libertarian principle of non-aggression may agree on some of these, but from a philosophical (not legal) stand point, the jury is still out on what does and does not constitute actual free speech. Some anarchists, for example, might say that slander, libel, blasphemy, and hate speech should all be free because the government can abuse the spirit of those laws and use them to infringe on controversial speech that doesn’t quite breach the line of “aggression.” Still, people in our culture tend to complain if they feel their right has been violated, and one might be led to believe that a libertarian society means that individuals are beholden to each other to provide a soap box to their neighbor.

Are private individuals obligated to each other?

Let’s say that I have am very vocal about a local issue and I want to spread the word about my opinion on that issue. So I make a ton of signs (very cleverly done, btw) and I want to post these signs in my friends’ yards because I want the people who happen by their houses to see my opinion (and hopefully be persuaded). How do I get my friend to put a sign in their yard? The obvious answer is that I can ask my friend to put a sign in their yard, and my friend can respond with either a ‘yes,’ or a ‘no.’ So far so good, right? This illustrates the basic differences between rights vs privileges. If my friend says, yes, … Whoopi! I’ve been granted the privilege of putting a sign on their property, and if my friend says no, then I ….. through a temper tantrum? Or move on and find someone else who will help me?

If my friend says ‘no’ (for whatever reason) and I place one there anyway, should I get angry if he comes along and takes my sign out of his yard? Should I enlist my family and friends to post 10 signs in my disagreeable friend’s yard in retaliation? Can I then get angry and cry about violations of my free speech because my friend doesn’t want to post my signs in his yard? Of course not. It’s his property, and even if he were an advocate of free speech, he has no obligation to me to let me speak from his property. This principle can be extended to a variety of situations, Pepsi has no obligation to market Coca-cola products, the Democrats aren’t obligated to present the Republican platform, Fox News doesn’t really have to be “Fair and Balanced” (do they still use that moniker?) and that small business owner isn’t obligated to leave a gang’s graffiti on the side of his building. None of these are violations of free speech, and free speech is not the freedom to force others to provide for you a soap box from which to stand. Freedom of speech is your right to build your own soap box, on your own justly acquired property, and say (arguably) anything you want.

Who is obligated to protect free speech?

freedomThis is a bit of a twisted question; ultimately you protect your own capacity for speech, but there is an entity with the power to infringe on your speech, who is obligated to not violate it and that is the government. The First Amendment begins, “Congress shall make no law ….” So if you build your soap box and speak from it in an otherwise completely legitimate way, the government can’t come along and swipe your soap box. They also can’t tell you how to build your soap box, or require you to build enough room so that your opposition can speak from it too. The government can’t build generic “free speech zone” soap boxes and market them as their way of “protecting” or “ensuring” your right to free speech is protected.

And surely if our government remained as a small as it was at the ratification of the Constitution, then we would only need to worry about law makers violating our rights. But of course, we don’t have small government anymore, we have our tax dollars paying for a plethora of things including education. So not only are law makers obligated to make no laws abridging our free speech, but it would also be a violation for any publicly-funded entity to violate free speech rights as well, because they carry with them the prerogative of legal force and thus has the capacity to abuse that power.

The crux of the issue

It’s very easy for us to blame our problems on speech, but then invoke our right to it when we have something to say. But just because we have the right to free speech, doesn’t mean that our neighbor is beholden to us to provide for us with a platform. It’s our responsibility to acquire the platform, and the government’s job is to stay out of the way. And if individuals do provide a place where people can practice free speech, public officials cannot interfere even for the sake of avoiding the possibility that someone might take offense. Only public officials (elected officials, government employees, public school officials, etc) are obligated to not interfere in speech. This undoubtedly leads to some very controversial ideas being exchanged, but before these ever became accepted ideas (a spherical earth, hand washing before surgeries, women’s rights, and even the concept of the free and open Internet) they were once controversial, offensive, foolish, and even blasphemous notions that are now all considered common sensical.

So how should we as individuals respond when we hear offensive speech? How should we respond when our rights are truly violated?

NEXT: How should we respond to free speech? →

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Kerry Baldwin

independent researcher, author
