What are the main schools of thought on the "gray areas" of free speech?

Question

In relation to the Paradox of Tolerance (which roughly states that a society must be intolerant to intolerance of the core ideals of that society if it wishes to persist), a government that extends rights such as free speech codifies these rights in legal documents so that speech harmful to these ideals (sedition, calls to violence, etc.) are un-protected.

A society, by contrast, has no such explicit codification of which views are intolerant or harmful towards the human rights it promotes. Various subsets of society may have different views on what constitutes tolerance or intolerance, or what speech effectively restricts individual rights* (but often these views create a slightly narrower band of acceptable speech than the law does). In the absence of well-defined limits to allowable speech, what are the main schools of thought on whether it is harmful to the ideals of free speech, inclusion, and protection of basic rights to spread or silence (often by platforming or de-platforming) ideas that fall in the gray area of intolerance?

*By "effectively restrict", I mean some speech makes others feel threatened or less sure of their safety in participating in discussion, exercise of rights (speech, voting, etc.) In this sense, speech that is not explicitly promoting the removal of rights may be construed as harmful to the ideals of individual rights anyway. This class of speech or ideas is broadly defended in the now infamous Harper's Letter.

Answer 1

• Protection of statements of opinion vs. protection of statements of fact.
  There are countries where demonstrably false statements of fact are not protected while statements of opinion are permitted. "The moon is made out of cheese" would not be protected, "this government policy is wrong" would be protected. The obvious problem with that is where to draw the line.

• Censorship as prior restraint vs. consequences after the fact.
  There are countries where books, newspapers, stage plays must be shown to party or government officials prior to publication. A narrow definition of censorship covers just these cases, while maintaining that any punishment after publication would fall under legitimate anti-libel laws, or anti-sedition laws, or whatever.

• The role of private entities in the retransmission of speech.
  A narrow definition of freedom of speech would only limit government interference with speech, while allowing individuals or companies to use their power to suppress (or non-retransmit) certain speech.
  There are countries where privately-owned entities (newspapers, TV channels, internet companies like Twitter or Facebook) play a key role in forming public opinion. Are they required to provide a platform in some neutral way, and if so who defines what is neutral and what is legitimate maintenance of focus? Say there is a professional journal on the poultry industry. Does it have to give equal space to the vegetarian viewpoint?
  I still remember the good old days of usenet newsgroups, when rec.arts.startrek was split into several smaller groups so that university admins wouldn't drop it as an irrelevant waste of expensive bandwidth. Well, afterwards r.a.startrek.* were several of the largest groups.

• Loss of public places as a venue for speech.
  It used to be that a town had a couple of main streets with the important businesses, public buildings, perhaps a park or two. Standing at a street corner and shouting, possibly standing on the proverbial soapbox, would get one heard. Now many businesses have moved into privately owned malls, where private security can prevent shouting from soapboxes, and even loitering to listen.

• The ability not to be drowned by other speech.
  What happens when two or more people want to exercise their speech at the same time and place? Does the loudest voice win? How about using loudspeakers? The other side of the coin, can speech be banned in a residential area at 0-dark-30 regardless of content, to protect a healthy night's sleep?

• Coercive mechanisms other than forbidding speech.

  • By the government
    Some free speech advocates claim that freedom of speech should shield them from the consequences of reputation loss. That could be a government-mandated consequence, like the loss of a security clearance which causes them to be fired, or a loss of academic reputation which causes them not to be invited as speaker by public universities. (Last paragraph on the link.)
  • By non-government entities
    In countries where employers can terminate contracts at will, the exercise of free speech might cause employers to fire employees for what they said. Likewise, customers might not renew contracts with contractors. Arguably a much more significant consequence than getting a small fine or a suspended sentence in court.

• The scope of privacy laws to limit speech.
  There are countries where personal information of an individual may not be published without their consent. How far should that reach? There are the famous right to be forgotten cases in the EU, where a man named Costeja won the right to be known as the guy who took Google to court over listing decade-old debts, not simply as the guy with debts. (I know which reputation I'd rather have ...)

• Applicable jurisdiction, geoblocking, etc.
  It used to be reasonably clear where a speaker or writer was located. And if he or she was abroad, there was a publisher or importer of books who could be held accountable. With the rise of the internet, it becomes muddled. Does the location of the server count? The location of the company owning the server? The location from where the upload was initiated?
  Governments might claim extraterritorial scope for their laws and try to punish foreigners. (Some American public figures want to try Assange, an Australian, for treason against the United States ...)
  The other side of the coin, platform providers can restrict the access of what is increasingly seen as a global commons based on IP areas, and governments can block foreign traffic.

Answer 2

This question is both easy and difficult to answer. Easy because the general directions of the grey areas are fairly simple to identify. And hard because it's not too clear if there are truly distinct "schools of thought" on these aspects, as opposed to conjunctural positions.

Basically the directions of the grey areas are:

Whom does it: public -> private. The more one moves in the private direction the question becomes what is censorship vs. what is legitimate editorial control, or moderation, or simply exercise of private property rights.

A useful reading in this regard, which covers less traditional/recognized methods of censorship such as (economic) media capture is "Selective Control: The Political Economy of Censorship", a World Bank working paper. For a more illustrative but less systematic take see "21st-century censorship" in CJR. Both of these sources cover traditional media, rather than social media. Generally speaking, the higher profile a media outlet has, the more it is likely to experience this kind of pressure, especially under illiberal regimes, under which (sizable) economic actors have a large degree of interest alignment/compliance with the (monopoly) political power, thus to a large extent acting as a proxy for it.

More broadly, there's an obvious tension between private property and (free) speech of customers or employees, which e.g. in the US has mostly been resolved in favor of the property owners. (See e.g. Lloyd Corp. v. Tanner and the MNN case). At declarative level, some international agreements make less of a distinction between private and public actors though, e.g. the American Convention on Human Rights (which the US is not part to). In the US itself, the NCAC has taken some positions against private censorship, both on art-related and more clearly political issues involving both on-line services and traditional publishers.

If there is (an incipient) "school of thought" somewhat in opposition to that, it may be EU's recent attempts to classify and restrict some actions of "digital gatekeepers". Do note however that the EU angle/concern on this is mostly in terms of competition and transparency though, especially with the DMA. As far as policing speech (DSA), the EU is openly calling for differential rules for the larger (>45 million user) social media firms. But on the other hand, the kind of material that the states themselves can censor is broader in Europe; see below.

The material. It's hard to say here that there is one grey areas as opposed to several. But surely, hate speech (or even blasphemy) is one such topic of relevance to political discourse. (Obscenity/pornography is another content grey area, but less important to the "market of ideas".) Blasphemy laws actually exist in Europe, for instance, albeit not being invoked that often. More national laws restrict hate speech in Europe; see e.g. Wikipedia's summary for Germany. A prototypical example would be (laws against) Holocaust denial--there's also a (2008/913) EU Framework Directive in this area. And even before the recent attempts at codification in the DSA, the EU itself has had agreements with the large on-line firms in this (hate speech removal) area. But not everyone in Europe is happy with this approach; there are activists who have decried all of these and basically would prefer a (US) First Amendment equivalent for the EU countries. (A prototypical US counter example is the Skokie case.)

I'm not entirely sure if this is a proper sub-category of hate speech, but sedition is another (somewhat broad) category of speech that is outlawed in many jurisdictions, although the exact details differ, sometimes substantially. Although Wikipedia doesn't list it as such, China's law against inciting subversion is basically in the same vein.

For those with (plenty) time on their hands, the EU Parliament has a (2015) 440-page comparative study on limits of the freedom of expression in the Union in these two main regards (hate speech and blasphemy, with sedition sometimes mentioned). Alas even for hate speech, for which there is a EU directive, the study notes/concludes "Member States have not taken a harmonised approach in this respect, thus the list of protected characteristics varies from Member State to Member State." So, while one could say there's a consensus in the EU on hate speech in principle, there's still disagreement on the extent of what that entails.

Answer 3

The main problem is that absolute free speech as an individual right is fundamentally impossible, pointless or fraudulent.

If you define an absolute freedom in the presence of other people, then this either is just a privilege (if it is not universal but just applies to a fraction of the people), leads to competition (if all try to access it at the same time and compete for it) or requires cooperation and agreements (ultimately limiting the absolute nature of that freedom).

Of course everybody could be free to scream into the void, but lets be honest that is not the kind of freedom of speech that anybody is concerned with. What people are concerned with is the kind of free speech that gets into other peoples face and make them consider or reconsider a position. And in that case you already have a conflict of interest between the individual right to be heard and the right to not be annoyed.

So wherever you draw the lines is not really a question of an objectively right or wrong category but is rather about what you consider to be more important and that is something that can change between people, countries and change in time. Like you might not need the right to assemble now, but maybe when a political move hurts you, the value of that right massively increases aso.

So that gray area is always bound to be a matter of hot debate... The other thing is that you don't have to think of free speech as a goal in itself at all. You can also look at it as instrumental.

For example free speech is fairly useful to promote innovation. Everything new stems from people having stupid ideas and mixing ideas that might not have been meant to be mixed. So being able to think and speak freely is not just dangerous to the rulers, it's vital for the progression of society and while censorship might in the short run secure power in the long run it might seriously harm society. Like people are required to engage in some sort of double think or whatnot which might not be all that healthy.

Likewise the ability to voice objections can not just fuel dissent and conflict but also diffuse it. Like if I think you're proposal is meant to hurt me, I am likely to react with aggression towards a threat. If I however am able to express my concerns and you meet them with compassion and revise your proposal because that was not your intention then this would have prevented conflict.

So afaik the consensus is that the most freedom of speech is achieved if you have a broad consensus to a peaceful coexistence so if no one is existentially threatened the most can be said before people are REQUIRED to get defensive.

Answer 4

Paradox is just a fancy name for contradiction.

The essential problem to which free speech is supposed to be a solution, is that scoundrels in power constantly try to manipulate the communications and collective thinking of the community.

A common manipulation in the past was to criminalise the saying of certain things, and then imprison or execute accordingly. The purpose is not merely to suppress the communication, but as a pretense for using the criminal process to disable or destroy the thinker behind the communication.

There is no inherent contradiction in using free speech to advocate the abolition of free speech. The principle of free speech first arose in conditions without free speech, so it is not inevitably lost forever merely by falling from grace.

And a society with free speech does not need to be intolerant of calls to abolish free speech. In order to have free speech, a democratic society need only consist of an overwhelming majority who support free speech - a democratic society doesn't need to protect the principle from the majority, because in a democratic society the majority are the champions of the principle in the first place.

The underlying rationale for free speech is not "tolerance". It is depriving the rich and powerful of one of the primary ways they always use to hector and intimidate the population and try to get their own political way without overwhelming democratic support.

The contradiction arises when scoundrels in power once again want to suppress speech and criminalise speakers, but don't want to confess that they're actually opposed to free speech.

They want some formula of justification in which speech is in fact curtailed and criminalised, without admitting that this is the simple agenda.

The speaker promoting violence (but not for the time being carrying out violence), for example, does not need to be dealt with by criminalising his speech. It could be dealt with differently, for example by redressing the grievance behind the call to violence.

That's not what the rich and powerful want. They don't want to allow a reconfiguration of society in a way that promotes peace but erodes their own wealth and power.

That's really the root of the perceived contradiction - the desire of the rich and powerful to impose their own freedom to speak, upon a majority who are no longer willing to let them pump lies and smears into the public space with their control of media.

Meanwhile, the kind of speech which the grassroots would want protected, like a call to revolutionary arms against an oppressive elite, is once again criminalised.

Those backing "free speech" are almost invariably doing it in opposition to democratic forces, rather than acting with the democratic forces it was originally supposed to assist.