Freedom of speech is understood to be fundamental in a democracy. What limitations to freedom of speech are there in the United States of America and in Canada? Is Holocaust denial an example?

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    This question should really be narrowed down if you want to ask about Holocaust Denial specifically. My conlaw book dedicates 450 very large, dense pages alone to the issue of freedom of speech, and it's far for complete; as it stands this question is way too broad.
    – Publius
    Commented Jul 13, 2016 at 8:44

2 Answers 2


Up front: Holocaust Denial is not limited under U.S. law.

There is an adequate list on Wikipedia of free speech exceptions, that for convenience I will replicate here:

  • Communicative impact restrictions (e.g. incitement, elicitation)
  • False statements of fact (e.g. libel, slander, perjury)
  • Obscenity (very tightly interpreted, and only regulated in public)
  • Child pornography
  • Fighting words and offensive speech (closely related to incitement)
  • Speech owned by others (i.e. copyright violations)
  • Commercial speech (i.e. advertisement restrictions)

In general, free speech is highly protected in the U.S., and perhaps has greater protections than any other right, under the law. In order to restrict free speech under U.S. law, one must show that the speech itself causes immediate physical or monetary harm (e.g. child pornography, libel, false advertisement) or that it is likely to result in actions which will cause immediate physical or monetary harm (e.g. "lets go lynch that ^!@@$%!")

Worthy of note within discussions of free speech in the U.S. is the ongoing debate about "speech codes," which are shockingly common on U.S. campuses given how unpopular they are across the political spectrum. Some argue that speech that is emotionally damaging is sufficient harmful as to warrant restriction. Opponents have countered that the purposes of the university is to challenge existing ideas and that sometimes is uncomfortable. Importantly, none of this is a constitutional issue, except in state run universities, because private institutions can restrict speech if they want. Furthermore, it seems as though the impetus to restrict speech, even in this very narrow area, is waning although the situation could change.

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    Wish I could give this two upvotes and/or a star just for the mention of speech codes at American Universities. In fact, I'm prompted to perhaps ask a question on the very subject. Thank you again for a well written answer. Particularly, I'm wondering if it would be possible for the entire US, were it to all become privately owned in some form or other, to essentially completely lose its First Amendment rights. Commented May 17, 2016 at 15:56
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    @PeterDavidCarter-Poulsen I literally have no idea what you are talking about, or what this means in the context of this question. Commented May 17, 2016 at 19:51
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    It's the logical implication of what you are saying. If people can buy things in order to restrict free speech you're just switching the power of censorship from election to mammon. Which really doesn't seem like a step up. Commented May 17, 2016 at 19:52
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    @PeterDavidCarter-Poulsen I realize that you think you are making sense, but you are operating from so many assumptions that others don't share, and probably aren't even aware of—as in my case—that I have no idea what you are talking about. I applaud you for engaging in a public forum with others who don't seem to agree with you, but if you want people to respond, you have to actually explain what you mean. For example, how does buying or selling something restrict free speech? I bought a Big Mac earlier. Did that restrict someone's speech? Commented May 17, 2016 at 21:20
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    @SJuan76 You have stated your opinion but a lot of people have a different opinion. This isn't the place to argue about how the Supreme Court should rule on the matter. Until the Supreme Court does rule, for good or bad, the question is "still being worked out".
    – Readin
    Commented Jun 3, 2016 at 3:58

In the United States, free speech is everything except when there is an illicit action associated with it.

One poster mentioned child pornography. That is not an exception to free speech. The prohibition is on using children in such pornography. If you want to do lifelike computer animations of children engaging in unnatural acts, knock yourself out, pervert. It's perfectly legal.

That is, unless you misrepresent it as having actual children in it to induce people to buy your smut. This is the same as any commercial misrepresentation designed to induce a purchase based upon false information.

Libel/slander is not an exception to free speech. You can say whatever you want about someone. However, if it is false, you have to compensate that person for their injury. There is no criminal penalty for libel/slander in the U.S.

You are free to say "There is a fire in the the theater" when you are at home. You can't say the same when you are in the theater when it will induce panic. If your at a church dinner and say "That Schmitty pisses me off, someone should shoot him" you're engaging in free speech. If you make that same statement at a gathering of hit men to induce them to take an action, your speech is still free but your inducement to kill is still punishable.

In other words, you are free to speak but your speech may have consequences that you are libel for in some limited circumstances.

IMHO, the Wikipedia article on Free Speech Exceptions is a very poor analysis of the law.

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    Whether illustrated or animated, erotic depictions of children are not legal in Canada.
    – Dedwards
    Commented Jul 14, 2016 at 15:27
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    Wonderful answer. I've found that folks "not from here" (the US) have a difficult time fully comprehending the extent of what "free speech" really is. You called out some important distinctions.
    – acpilot
    Commented Jul 27, 2016 at 4:20
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    Your claim that "everything except when there is an illicit action associated with it" is incorrect: See obscenity laws and the Miller test. The first amendment does not protect "offensive" material. Commented Aug 1, 2017 at 19:56
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    You're mistaken about the nonexistence of criminal libel. It does exist at the state level, albeit with extremely rare enforcement. Nevertheless, prosecution can and does happen. The ACLU thinks these laws are unconstitutional, however, and they may be right.
    – Kevin
    Commented Mar 6, 2021 at 20:56

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