Legitimate Limitations On Freedom Of Speech

Based on some of the comments I've received in response to last week's post about what defines freedom of speech, both ones I've posted and and the handful I rejected, I've decided a follow-up is in order. Many talk about freedom of speech as if it is an absolute right (it isn't) and as if it is always good and desirable (it's not). Let me explain.

In the United States courts have long upheld limitations on free speech that most of us find to be quite reasonable. The most famous example is that falsely shouting "Fire!" in a crowded theater is not protected free speech. The reason is obvious. Such speech could cause people to be trampled, resulting in injury or death. The United States Declaration of Independence only enumerated three rights as "inalienable": "life, liberty and the pursuit of happiness." Notice that life comes first and since being trampled to death denies someone their life it is perfect reasonable for the U.S. Supreme Court to rule the way it did in 1919. Chief Justice Oliver Wendell Holmes, Jr. laid out the reason why speech can be limited:

"The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent."

Other examples of where free speech is limited in free societies falls into the category of where allowing an absolute right of free speech would deny others of rights which take precedence. In the United States there are laws against incitement to riot and incitement to violence. Defamation of character, including libel and slander, is also not protected speech precisely because of the harm done to the target of such speech.

Laws against sedition are certainly more controversial but the principle is the same: the harm done to citizens of the country could conceivable deny them of their life or liberty. In the United States the Smith Act is still the law of the land. The same justification is used for laws against treason and espionage, as well as prohibitions against some news reporting in war zones. Many Americans will remember that Geraldo Rivera of Fox News was expelled from Iraq for revealing the location of U.S. troops, an act which could put those troops in danger.

OK, up until now I am talking about broad principles and governments. The reason I went off in that direction is to make the point that most reasonable people in free countries do understand, accept and support reasonable limitations on free speech. By the strictest definition of the word these examples are all forms of censorship. Censorship, in and of itself, is not evil. What is evil, or at the very least damaging to a free society, is the indiscriminate or unjustified use of censorship. This brings us back to last week's post. What about individuals, blogs and websites?

Let me reiterate the basic premise of what I wrote last week. You have a right to your ideas and opinions about pretty much anything at all. You have a right to express them. That is the essence of freedom of speech and expression. You do not have the right to publish your ideas wherever you want without the approval of the owner of the media where you want to publish. You do not have the right to order a website or a blogger to publish your comments whether they want to or not. That isn't freedom of speech. That's dictating what speech will be published. It is the antithesis of free speech which is being misrepresented as free speech.

Let's go back to the example of LXer.com and their Terms Of Service (TOS). There was a period some months back where it seemed to a number of the regulars in the LXer.com forum, including myself, that a few individuals were effectively hijacking the site, turning the forum into a soapbox for a particular political agenda. They would dominate threads and post long diatribes anytime someone would disagree with their views. I visit LXer.com to read news about Linux and FOSS (Free and Open Source Software), not to debate politics. Yes, the agenda in question was one with which I disagree but that really is irrelevant. I don't go to Linux news sites to read about politics of any stripe. A number of us complained to the editors and the Terms Of Service are now being enforced. I was sharply criticized and personal attacks were leveled at myself and others because we wanted a Linux site to be a Linux site.

I made the point last week that many websites and blogs are designed to express a particular viewpoint or opinion. That is no different from other forms of media. Fox News is known for expressing a conservative Republican political agenda in the United States. As I pointed out last week I cannot demand they air my decidedly more liberal views. In the case of a blog or website, particularly one that expresses unpopular minority opinions as I often do, without comment moderation it is entirely possible for the message to be lost in all the noise. Another possibility, particularly when a site has a an agenda, is that the other side of the debate tries to effectively take over and weaken the message. Moderation, even though some define it as "arbitrary" or "capricious" is an absolute necessity in these cases. Why? Without moderation the ability to express the viewpoint the author or editor wants to express can be diluted or lost. In effect, those who insist on their "freedom of speech" in the form of unlimited, unmoderated comments are denying those same freedoms to those they disagree with.

I received a perfect example in a comment I rejected today which concluded with the commenter telling me he want me to "shut up and get lost." I will do neither. It's funny how those who cry "censorship!" and claim a denial of "free speech" the most vociferously are willing to deny that speech to someone they disagree with. They demand the right to dictate what I or anyone else will or will not publish but would deny me the right to say something they don't like. As I said last week: some people have very strange ideas about freedom of speech.