Is there an objective ground for restricting forms of speech/opinion?

In other words, a restriction that's not biased, but one that may be interpreted independently of the subject.

I find it hard to grasp that such would exist, even when I understand the motives of anti-harassment laws. But what I don't understand is, how would it be possible to decide on a restriction that's not based on someone's preference? Isn't a restriction of free speech itself an opinion that limits someone else's ability to express their opinion?

  • Comments are not for extended discussion; this conversation has been moved to chat.
    – Philipp
    Aug 13 '21 at 10:52
  • you should have this questions asked on Stack Exchange Law
    – CDA
    Aug 31 '21 at 18:56

States tend to restrict freedom of speech for several reasons:

  • Prevent harm to individuals by defaming speech (insults, defamation)
  • Prevent harm to individuals by malicious misinformation (fraud, false advertising or the classic example of "shouting fire in a crowded theater")
  • Prevent harm to the values of society or to the development of minors by obscene speech (censorship of pornography or glorification of violence)
  • Prevent harm to whole groups of the population by agitation and calls to violence
  • Prevent harm to the public order by speech which undermines the authority of the government

And these are just some examples.

In all these cases, there is an assessment of the personal right to freedom of speech vs. other rights which could be violated or damages which could be caused by said speech. Freedom of speech is not the only fundamental right guaranteed by most states. States are often also obligated to provide personal safety, human dignity, property rights, equality, equity, rule of law, public order and many more. There will always be cases where two fundamental rights conflict in each other. So no fundamental right is absolute. In such cases, the state has to find a compromise. Which means one fundamental right must be limited in order to preserve another.

Different states make these compromises very differently, depending on their ideological values and political circumstances. Some countries, like the United States for example, are very lenient when it comes to speech undermining the authority of the government. Other countries, like the People's Republic of China for example, are a lot more strict in that regard and will suppress any open criticism of the state.

  • Critique: Give an objective definition for insult.
    – mavavilj
    Aug 12 '21 at 19:42
  • Also, is an "ideological value" objective? What about the interpretation of political circumstance?
    – mavavilj
    Aug 14 '21 at 5:56

In other words, a restriction that's not biased, but one that may be interpreted independently of the subject.

In the context of US First Amendment law, the phrase you are searching for is "viewpoint neutral." American free speech law distinguishes between three* types of restrictions on free speech:

  • Viewpoint discrimination: One viewpoint is treated differently to another (e.g. "You can't have a pro-life protest, but a pro-choice protest is fine."). This is almost never constitutional.
  • Viewpoint neutral, but content based: Viewpoints are treated equivalently, but the regulation still applies to speech based on its contents rather than other circumstances (e.g. "You can't have any protest relating to abortion, pro or contra."). This is very rarely constitutional.
  • Content neutral, or "time, place, and manner restrictions": The regulation is purely based on the form or circumstances of the speech, and does not depend on its content at all (e.g. "You cannot have any protest, regardless of subject matter, after 10 PM."). This is much more likely to be constitutional, as long as the government has good reason for it (e.g. "The whole point of a protest is to make noise and get people's attention, but at night this would interfere with sleep.").

You seem to be asking why the Supreme Court has often upheld time, place, and manner restrictions as within the government's power. One thing to bear in mind is that almost any activity could conceivably be a form of expressive conduct, such as erecting a tent city and sleeping in it. Some of those activities might substantially disrupt public order or the wellbeing of others, as with our example of a loud protest late at night. You might also imagine a protest blocking a road and interfering with the orderly flow of traffic. In general, the Supreme Court has held that the government can have a legitimate interest in protecting the public from this sort of disruption, and that in cases where that interest is strong enough, the government can act on it.

* American free speech law is complicated, and draws many other distinctions which are also considered when evaluating a restriction.

  • I think a good example of "viewpoint neutral" restrictions would be the banning of Nazi symbology in modern Germany. You can't go around waving a Nazi flag, but (until very recently) you couldn't put Nazi flags in your game about killing Nazis, either.
    – F1Krazy
    Aug 12 '21 at 18:46
  • I do not understand how any form of speech can be prohibited, because their interpretation is usually still subjective. As a gross example, waving a Nazi flag can be a troll or it can be serious. We had kids drawing Nazi symbolism at pre-school and it was considered a joke (black humor). And those that are annoyed by it might choose to be annoyed or not. I find it's like the ability to put internet filters, if one chooses to not want to view something. But this is not the same as prohibiting the expression of some genuine view.
    – mavavilj
    Aug 12 '21 at 19:15
  • @mavavilj: In the US, waving a Nazi flag is considered protected speech. Most people would find it abhorrent, of course, but it's nevertheless a lawful activity under US law.
    – Kevin
    Aug 12 '21 at 19:24
  • As an example, one could also ask why is it allowed to wear religious symbolism then, if it's not allowed to express other ideas? I find that free speech is either "all goes" or it's not free. It's pretty simple.
    – mavavilj
    Aug 12 '21 at 19:28
  • @mavavilj: Killing someone could be considered an "expressive" activity (e.g. it could mean "Pay your protection money, or else you'll be next"), but most countries still consider it illegal. You have to draw the line somewhere.
    – Kevin
    Aug 12 '21 at 19:43

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