The Importance Of Free Speech

And why laws alone cannot solve the trouble with it

It seems like a small and inevitable step from the freedom of thought to the freedom of speech. Nevertheless, it has been a tremendous progress for humanity to achieve a modicum of free speech and it is by no means universally guaranteed. And while our thoughts are typically beyond control, it can be the absence of expression that reveals our innermost, such as the lack of virtue signaling in a corporate meeting or the failure to heap praise on a political leader in a public setting.

The basic question is, why should we obey someone else’s restrictions on our speech?

So called free speech maximalists (i.e., Elon Musk) will not tolerate any limitation, even if the laws require it. For everyone else, there are more or less legitimate barriers to speaking one’s mind without constraints. There is an external cost to the freedom of speech, therefore potential harm and freedom need to be weighed against each other. Words can incite violence, create serious harm to others, put people’s lives at risk, undermine the safety of nations, or just offend the ones in power. Either by culture, history, or interests of power, our nations follow different societal consensuses, and a broad spectrum of laws and judicial precedent emanate from those.

When we talk about freedom of speech, the conversation begins with the law (Stanford Encylopedia of Philosophy):

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).

In the US, freedom of speech was of such importance to the founders that they enshrined it in the 1st amendment to the Constitution in 1791 (part of the Bill of Rights)¹:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

It’s a brief sentence and also proof that brevity can come at the expense of clarity. Like much of the Constitution, it is somewhat ambiguously phrased, thereby leading to a rich history of Supreme Court decisions. “Interpreting the constitution as it’s written” is an oxymoron, because simply taking the words of the constitution at face value wouldn’t require an interpretation. And even textualism or originalism in its purest form (as practiced by Justice Scalia) require historical context² because “there isn’t that much written in the constitution” (Justice Sotomayor).

Life in the UK in the 17th and 18th century provides a background for such interpretations, since the Constitution was either meant to continue British common law traditions (i.e., the right to carry arms in the 2nd amendment) or be antithetical to them. Free speech was just evolving in the UK in the 17th and 18th century. The "freedom of speech and debates or proceedings in Parliament" in the British Bill of Rights in 1689 was a major step in that direction. In the following years, the debate evolved in typically British ways, with lots of back and forth. The British government even suspended Habeas Corpus rights in 1794 (which had been an unenforceable legal principle since the creation of the Magna Carta in 1215 and became an enforceable right in 1679³) for fear of radicalism spilling over from the French revolution.

In the US, after the enactment of the 1st amendment in 1791, free speech did not become a contested topic for 128 years, until the Supreme Court’s first case in 1919 (Schenck vs Holmes), which yielded this judgement: “Words that, ordinarily and in many places, would be within the freedom of speech protected by the First Amendment may become subject to prohibition when of such a nature and used in such circumstances as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.” Since then, the US Supreme Court has decided in 71 significant cases, thereby clarifying and often broadening the meaning of free speech (e.g, contributing money to political campaigns is protected speech, but students making obscene speeches at school-sponsored events is not). So much for “interpreting the Constitution as it’s written”. And this is roughly where we are now⁴:

“Pure” speech that creates no danger to the public is protected. However, if speech advocates an imminent lawless action that presents a “clear and present danger,” the speech loses its protection, as the Court ruled in Schenck v. United States (1919). In Texas v. Johnson (1989), the Court found that symbolic speech or use of actions as a substitute for words is generally protected, such as flag burning as a controversial but valid expression of political views. Obscenity or pornography, defamatory communications (libel and slander), and “fighting words” that provoke an immediate breach of the peace do not receive First Amendment protection.

After WWII, the American legal concept of free speech had great influence on other countries, especially Germany whose Constitution (called Basic Law/Grundgesetz) was written under the supervision and with the support of American experts. In the 1990s, a partner at Sullivan Cromwell in New York told me that one of his former colleagues had written the German Constitution, which was probably an exaggeration of their contribution. Nevertheless, my impression is that the German Constitution contains improvements and updates to the US Constitution which seemed desirable to the authors at the time. The language of article 5 is concise and precise:

(1) Every person shall have the right freely to express and disseminate his opinions in speech, writing and pictures and to inform himself without hindrance from generally accessible sources. Freedom of the press and freedom of reporting by means of broadcasts and films shall be guaranteed. There shall be no censorship.

(2) These rights shall find their limits in the provisions of general laws, in provisions for the protection of young persons and in the right to personal honour.

(3) Arts and sciences, research and teaching shall be free. The freedom of teaching shall not release any person from allegiance to the constitution.

For Americans, Germany (and the rest of Europe) can feel rather restrictive when it comes to free speech, and the current American Vice President recently delivered a stern and not so well received lecture on the topic in Munich. Broadly speaking, the freedom of speech ends where it collides with other laws and rights, some of which are also enshrined in the Constitution. German courts will carefully weigh freedom of speech against the protection of personal rights, minors, or personal dignity. Some of this is rooted in Germany’s troubled 20th century history:

Insults, hate comments, defamation and racist, antisemitic and anti-constitutional statements are examples of criminal offences that do not fall under freedom of expression. This also includes the publication of the symbols and slogans belonging to extremist groups. There is a particular sensitivity towards right-wing extremist statements due to Germany’s historical responsibility. The denial of the Holocaust in particular is seen as an attack on the fundamental values of the Federal Republic of Germany, which is why it is a punishable offense. The dissemination of lies or fake news can also be punishable in certain cases, such as if they constitute defamation or incitement to hatred. There is always a need to assess carefully where freedom of expression ends and criminal liability begins. For this reason, public prosecutors and courts have to carefully weigh up the differing legal interests in each individual case.

In my view, there is nothing wrong with a limited number of clearly defined restrictions, as long as they are predictable, applied in a non-arbitrary way, and the fines are not excessive⁵. Not being allowed to question the Holocaust seems like an acceptable limitation of freedom in comparison to the pain that such behavior inflicts on the survivors and descendants of the millions who died in it. Unlike many Americans, most Germans and other Europeans don’t follow the “slippery slope” argument, by which even one restriction forebodes an implosion of the whole foundation (i.e., the prohibition of bump stocks for the right to bear arms in the US). There exists a willingness to search for compromise instead of black and white antagonism.

On a global level, and thanks to Eleanor Roosevelt, we have the Universal Declaration of Human Rights, adopted by the United Nations General Assembly in 1948. “Articles 18–21 sanction the so-called "constitutional liberties" and spiritual, public, and political freedoms, such as freedom of thought, opinion, expression, religion and conscience, word, peaceful association of the individual, and receiving and imparting information and ideas through any media.” All 193 member states of the United Nations have ratified at least one of the nine binding treaties influenced by the Declaration, with the vast majority ratifying four or more⁶. What a contrast there is between supranational agreements and reality.

Eleanor Roosevelt

Speaking of reality - many countries still engage in repression and their number seems to increase. The Committee to Protect Journalists (CPJ) publishes a list of the 10 most censored countries, which follow the same playbook of (1) total control, (2) one-man shows in government, (3) use of the “big lie”, (4) zero tolerance for negative coverage, (5) a cynical regard for public welfare. Many of the 57 Muslim countries have a special problem when it comes to what they regard as blasphemy. Their rules around blasphemy are often ill defined, arbitrarily enforced and trigger excessive punishments. Salman Rushdie, for whom Ayatollah Khomenei issued a fatwa in 1989 for a book (“The Satanic Verses”) that none of his persecutors had ever read, can attest to that.

The reliance on laws alone cannot guarantee a functioning framework of free speech in society. Call me old fashioned, but something like a “code of good conduct” would help. Of course, any voluntary conduct depends on what we as a society want to get out of our liberty to speak freely. If it’s just about about being the loudest or most annoying voice, there cannot be a free speech consensus that leads to better dialogue, more enlightenment, and a common search for truth. I have my doubts that truth can emerge from a cacophony of free speech uses and abuses.

The following represents a few items from my wishlist for gentler and more constructive free speech interactions in society. It is by no means a complete list and any alternative ideas on this are welcome.

• People in power need to have a higher tolerance for criticism or even insults than ordinary people. Power comes with privilege, ample protection, and a coterie of yes-men and women who like to indulge in flattery. I am not arguing for a mob attack on power here, but speaking from a position of power mandates a higher level of sensitivity towards underlings. A recent case of a government minister (Habeck, Germany) suing a citizen for calling him an “idiot” on the internet is not just an excessive display of government power but also proof that the minister deserves to be called a beleidigte Leberwurst (a sore loser).
  That being said, it is astonishing how many democratic countries still have lèse-majesté laws, something that one would normally associates with Thailand, Russia, or Arab monarchies. Germany, Belgium, the Netherlands, Italy, Spain, Portugal, Poland, Denmark, Iceland, and Estonia have one, mostly to prevent their citizens from insulting heads of foreign states and thereby harming trade relations.

• Coercion into submission is a popular but illegitimate (or even illegal) way of subverting free speech. Whether it happens in government, in business, or in private affairs, it follows the same pattern: “You have the right to speak freely but we will find ways of punishing you if you insist on your right.” A classic case of coercion is the most recent lawsuit by the current president against CBS for allegedly editing an interview with Kamala Harris to make her look more electable. A $20bn lawsuit (to compensate for giving the president “mental anguish”) and a veiled threat to block a pending merger via FTC authority have led Paramount (CBS’s owner) to offer a $15mn settlement, which was already deemed too low by their opponent. Not only is this a classic case of coercion, it is also impermissible according to the US Congress.

• I am not a fan of insults and profanity as a way to address grievances about things and other people. In the US, they are generally considered as protected speech, unless they are fighting words that incite violence or an immediate breach of peace. Other countries are not so tolerant with that kind of language⁷. If one supports the argument that free speech supports higher moral goals, an expletive laden speech is not conducive to that. The sheer unpleasantness of such speech will make other people turn away from potentially valid arguments. Case in point: I prefer to walk my dog (a perfect dog) without a leash, which is illegal but mostly not enforced in Chicago. There are those who loudly admonish me by calling me an asshole (stocky white guy in his mid 50s, too proud to admit to his fear of dogs), and there are those who politely ask me to put my dog on a leash (shy young black woman who grew up with a fear of dogs). Of course, I am glad to comply with the latter’s request because I am not what the stocky white guy calls me.

• “Human dignity is inviolable” (Die Würde des Menschen ist unantastbar) is a great guideline from the German Constitution. Any denigration of another human being, such as by mocking their physical attributes, mental capacity, ethnicity, gender, or other private circumstances should be off limits. Unfortunately, it has become commonplace to disparage others for telling inconvenient truths, especially in politics. Journalists are called “bottom scum” (Mike Waltz about Jeremy Goldberg, the Atlantic’s editor who was added to a confidential Signal chat), other critics are termed low-lives, foreign students get equated with terrorists, and refugees are labeled as vermin. For those who struggle with moderating their choice of words, they should be reminded that all good speech should allow for reciprocation.

• Conjecture is “an opinion or conclusion formed on the basis of incomplete information” and it is the capital sin of speech. Some of us are familiar with the concept from our private interactions. “I know you did this because it’s typical for you and your reasons for doing this are obvious, and you better admit it” is a familiar and rather unpleasant pattern of speech. It’s called an allegation that typically insinuates a hidden (and nefarious) agenda. People resort to it in private, in business, and in politics. It can be powerful, overwhelming, and difficult to refute. Jake Tapper just published “Original Sin”⁸ which can be summarized as “Biden was already unfit for office at the time of his election in 2000. His wife Jill pushed him to maintain his candidacy in 2024 so she could keep running the country with him as a puppet. We know it’s true because Biden didn’t recognize George Clooney anymore.” Parts of this story may be as true as others are not, but it’s enough to create big waves, trigger investigations, and lead an otherwise respectable German journalist to conclude that women have always been more reckless than men.

• One can only be tolerant of dissenting views. Goebbels and Stalin supported free speech, as long as it was their own⁹. Free speech requires tolerance of statements that we wholeheartedly disagree with. That being said, this leaves the problem of how to deal with intolerance. We live in a time of aggressive intolerance that manifests itself in attempts to violently overthrow elected officials (the Jan 6 mob, the attempted kidnapping of Michigan’s governor, some supporters of Russia in Europe), radicalized protesters screaming slogans about eradicating Israeli citizens, Israeli extremists calling for the expulsion of Palestinians from their homeland, climate activists gluing themselves to objects of art or streets, or members of the anti-vaccine movement demanding heads of scientists to roll. In my opinion, and I share this with Karl Popper, there cannot be tolerance for the intolerant¹⁰.

• “The limits of my language mean the limits of my world” wrote Wittgenstein¹¹. Good speech requires an aptitude with words and a certain amount of precision. In our digital age, there is little regard for the meaning or understanding of words. Terms like racist, fascist, liberal, socialist, communist, or colonialist are applied to others in the broadest sense, beyond their original meaning, and based on whatever sticks. The objective of speech becomes the destruction of others. A German management coach who I worked with aptly called this form of speech “pauschale Hassaussagen mit Verletzungsabsicht” (general statements of hatred with the intention to inflict pain).

• Don’t write on social media what you wouldn’t say to someone’s face. Or in the inimitable voice of a former boss of mine: “Don’t be stupid.”

1. The US Constitution itself was signed in 1787 and ratified by all 13 states in 1790. The Bill of Rights contains 10 amendments and there exist 27 amendments to the Constitution today.

2. Famously, in District of Columbia vs. Heller (2008), Scalia went back to Roman history to argue for an individual right to bear arms

3. “Magna Carta: Muse and Mentor, Writ of Habeas Corpus” - Library of Congress:
“King John’s Magna Carta guaranteed to all free men immunity from illegal imprisonment, a guarantee that has traditionally been invoked by way of the writ of habeas corpus. Under the concept of habeas corpus in Anglo-American jurisprudence, persons who are deprived of their liberty have the right to challenge the legality of their arrest or detention through a judicial inquiry. Habeas corpus is a Latin phrase meaning ‘produce the body.’ By means of the writ of habeas corpus a court may order the state to ‘produce the body,’ or hand over a prisoner so that it might review the legality of the prisoner’s detention.”

4. EBSCO, https://www.ebsco.com/research-starters/law/supreme-court-and-constitutional-law

5. In 2024, 95 year old Ursula Haverbeck, was sentenced to 1 year in prison for persistently denying the Holocaust, after already having been imprisoned for 2 years for the same offense earlier. Despicable as her denial was, the sentencing may strike one as a little excessive.

6. United Nations, Human Rights Law, https://web.archive.org/web/20200813084117/https://www.un.org/en/sections/universal-declaration/human-rights-law/index.html

7. Calling someone an “Arschloch” can trigger §185 of the German criminal code which allows for financial penalties that are income dependent or leads to imprisonment under 1 year for repeated and public offenses. https://muegge-pitschel.de/en/criminal-law/allegation-of-insult-under-%C2%A7-185-stgb/

8. “Original Sin: President Biden's Decline, Its Cover-Up, and His Disastrous Choice to Run Again”, by Jake Tapper and Alex Thompson, 2025

9. Noam Chomsky in “Manufacturing Consent: The Political Economy of Mass Media” (1988): “Goebbels was in favor of free speech for views he liked. So was Stalin. If you're in favor of free speech, then you're in favor of freedom of speech precisely for views you despise.”

10. About the “paradox of tolerance” he writes: “Unlimited tolerance must lead to the disappearance of tolerance. If we extend unlimited tolerance even to those who are intolerant, if we are not prepared to defend a tolerant society against the onslaught of the intolerant, then the tolerant will be destroyed, and tolerance with them.” (Note 4 on chapter 7 of “The Open Society and its Enemies”)

11. “Tractatus Logico-Philosophicus”, 1922