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It is important for members of society to be able to speak their mind without fear of being arrested, injured, or murdered by the government or by other people in response. However, this freedom to speak must have limitations to protect others from harm, to protect society and by extension the freedom itself, and to facilitate cooperation among people in designated public spaces.
Honesty and peacefulness are important limitations of this right.
In the United States, the First Amendment to the Constitution states “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.” However, in practice the legislature has enacted many laws limiting speech to prohibit incitement of violence, hate speech, defamation, and fraud; and to make publishers liable for the articles they edit and disseminate. All of the restrictions relate to one or both of our explicit limitations of honesty and peacefulness.
Article 7 of the United Nations Universal Declaration of Human Rights states “All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.” The second sentence of that relates to the right to honest and peaceful speech. An incitement to violence, hate speech, or an incitement to unfairly discriminate against others is not peaceful speech.
Article 19 of the United Nations Universal Declaration of Human Rights states “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.” This omits any mention of important limitations on speech, and also the lack of any obligation on anyone else to provide a platform for someone’s speech.
The nature of speech must be peaceful. Inciting or threatening violence doesn’t need to be protected because only the government is allowed to initiate violence against people. Disrupting a public proceeding doesn’t need to be protected because it’s important to protect the functions of society and there are already rules that allow everyone a turn to speak, or people can talk before or after the proceeding, or outside.
Imagine being asked to fight for someone else’s right to free speech, where the victim of the rights violation was censored or punished due to their speech, if the speech in question is a death threat against someone else due to a disagreement or a provably false claim that is either a baseless defamation or part of a fraud, or disrupting a public proceeding where that person could have waited for their turn to speak or communicated in another way such as holding a sign or writing a letter to the editor? Would you fight for that? Would you risk injury or death to protect someone else’s right to be a bully, to make baseless accusations, lie and cheat, or inappropriately disrupt a public proceeding? I wouldn’t. Those are not the things I would stand for. It’s easier to support a fight to protect someone else’s right to free speech if the speech in question is honest and peaceful.
Application in the United States:
The situation in the United States is problematic in three ways. First, the Constitution states “Congress shall make no law… abridging the freedom of speech, or of the press…” whereas in fact Congress has passed numerous laws restricting speech, so it appears these laws are unconstitutional even though they are necessary to maintain order. Second, even with some restrictions in place, additional restrictions are needed to prevent the freedom of speech from being abused against society itself such as by lying and making false claims under the guise of political speech or news or entertainment. Third, the freedom is a negative right against the government making laws restricting speech, but there is no positive right to speak and no provision for order so this leads to situations where private organizations operating as public spaces restrict speech that may be important political speech, or public organizations restrict speech in some ways without a law being made.
Some exceptions to the freedom of speech have been codified by numerous laws that have been upheld by the courts. In general, the exceptions to the freedom of speech are adopted to protect people from harm so libel and slander are illegal, death threats are illegal, fraud (part of which involves speech) is illegal, making false reports to law enforcement is illegal, and more.
However, there are significant abuses of the freedom of speech for which restrictions are needed but haven’t been adopted. The overly broad right to free speech allows politicians and elected officials to lie to their constituents without penalty everywhere except under oath in a court of law; it allows people to spread propaganda that is harmful to society using false information, fake evidence, and other dishonest means, under the guise of news or entertainment; and it allows publishers to mislead the public with false claims in headlines or articles for the purpose of profiting from the attention they receive.
There are many Internet sites now that seem to be a kind of digital “public square” operated by a private company. Some people have clarity about the difference between editing and publishing content and being liable for it or allowing users to self-publish and be liable for what they post, but other people are confused about this. When a company hides or deletes a message that violates the terms of service, some people think the right to free speech has been violated even though in the Constitution that right is only a negative right against the government, and doesn’t apply to these privately owned spaces even though they seem public. This means at least some people expect an additional right to free speech that has not been agreed upon by society. Moreover, because the existing right to free speech is overly broad, some people think that any act of hiding or removing their messages violates their right to free speech, even when their messages contain false claims, hate speech, calls to violence, death threats, or other content prohibited by the site’s terms of service or by law.
There are other situations that require additional limits to free speech. Designated public spaces such as legislatures, court rooms, libraries, and public schools must further limit speech to maintain good order. Legislatures adopt rules of order and representatives speak only when recognized by the president of the proceedings. Court rooms have rules of order and attorneys and clients speak only when recognized by the presiding judge. Libraries need to foster a quiet environment for people to read books there, and people exercising their right to free speech in a loud way would be a nuisance. Schools must limit free speech to maintain order and create a productive learning environment. For some people, the idea of free speech precludes the notion that there’s a time and place for some kinds of speech. For others, these additional limitations in designated spaces are important common sense exceptions to the right of free speech because without limitations those spaces would not work for their designated purpose.
The freedom of speech must be limited in order for the laws that restrict harmful speech to not contradict the freedom, and in order to prevent the freedom from being abused to the detriment of society.
A proposed revision to the First Amendment would that would partially solve the problems discussed here is to include the words “honest and peaceful” so that part of the sentence would read: “abridging the freedom of honest and peaceful speech”. This would entail that the various laws restricting dishonest and harmful speech would then be aligned with the freedom, and additional laws would be possible to restrict the use of false information or fake evidence in propaganda including political speech by elected officials or candidates or their supporters or detractors. It does not address the problems of free speech in private spaces or additional limits to free speech in designated public spaces such as legislatures, court rooms, libraries, and public schools.
There is a perspective that there should be no restrictions on speech, but it’s easy to imagine situations where this leads to detriment of society itself. For example, imagine an election where two candidates are competing for an office, and one candidate promotes false claims against the other that cause the other candidate to lose support, leading to the election of the dishonest candidate. If we ask ourselves what kind of elected officials we need and compare that to the kind of politicians we have, we might come to the conclusion that at least one reason we have so many dishonest politicians is because we give them an advantage in elections by not restricting dishonest speech.
There is a perspective that more speech is a better than restricting speech. However, this is not practical for at least four reasons. First, it’s easier to make false claims than to seek out the truth, document the evidence, and report on it. Second, there’s no guarantee that the “more speech” will reach the same audience and have any impact on them. Third, a tactic used by propagandists is to cause their audience to distrust other information sources, such as by falsely claiming that all others are corrupt or fake or secretly controlled by a sinister cabal, so if the propagandist is allowed to continue the dishonest speech the audience will eventually reject the “more speech” when they encounter it. Fourth, some designated public spaces require limits on free speech to maintain good order in support of achieving their intended purpose. If a person’s speech is out of order and interferes with the proceedings, “more speech” by others doesn’t remedy that at all, and instead further interferes with the proceedings. More speech is not an effective remedy to dishonest or violent speech, or for free speech that interferes with the use of designated public spaces such as legislatures, court rooms, libraries, and public schools.
The “honest” limitation on freedom of speech leads to a question of who decides what is true or false. We already have a mechanism for that — the courts. The courts already rule on cases involving libel, slander, false advertising, fraud, death threats, and more. Attorneys present evidence and call on experts and witnesses to testify. There are punishments for contempt of court or lying under oath. This existing system is often overlooked by people who object to an honesty limitation and fear the creation of a “Ministry of Truth” as portrayed in George Orwell’s novel “1984”. Such a ministry isn’t necessary if the right to honest speech is enforced in the same way other rights and laws are enforced already, by the court system with due process.
In the United States, the First Amendment to the Constitution specifically mentions “the press”. This is an unnecessary distinction because everyone has the right to honest and peaceful speech and the medium is irrelevant — in person, in a book, in a newspaper, in a television broadcast, in a video distributed online, etc. The press does not require any special treatment compared to anyone else.
People who want to legally disseminate information that is not based in fact MUST label it appropriately as “opinion”, “satire”, “entertainment”, or “religious belief”. Information that is not based in fact, or information that has non-factual opinion mixed in with facts, MUST NOT be labeled “fact” or “factual”, “true” or “truthful”, or “news” because “news” implies factual information. A news organization may honestly report that a person said something that was false or dishonest but must make a distinction between the news report, such as “person X said Z”, and the thing that was said (Z), clearly labeling the news report as factual (person X did in fact say Z) and, to avoid liability for disseminating the “Z” when the “Z” is not factual, the news organization may label the thing that was said (the “Z”) as person X’s opinion that is not shared by the news organization.
When a person signs a non-disclosure agreement with another person, a private organization, or with the government, that is a limited waiver of the right to honest and peaceful speech regarding the topic of the non-disclosure agreement. However, agreements in furtherance of a crime are non-enforceable so a non-disclosure agreement cannot be used to seek damages from a person who disclosed evidence or suspicion of a crime or unethical conduct that has occurred or the person believes will occur. Specifically, the government may not use its information classification system to cover up misconduct. To protect oneself from liability, it is best to disclose such information to the Investigative Branch or, if the Investigative Branch is unresponsive, to a professional journalist who promises to keep the person’s identity confidential. However, keeping someone’s identity confidential is just another kind of non-disclosure agreement, and cannot be used to protect a crime such as misinformation hurting the public — for example if the “leaked” information was fabricated or fictional and misreported as fact.
In the United States, the freedom of speech guaranteed by the First Amendment to the Constitution applies only to government. The government is prohibited from censoring speech, but private organizations are not.
In this proposal, the right to honest and peaceful speech is a individual right that protects against both government and private censorship. In practice this means that a lawsuit intended to silence someone must fail if that person can demonstrate in court that their speech was honest and peaceful. It also means that if a customer writes a letter to a company complaining about a situation, and the content of the letter is honest and peaceful, that company is prohibited from retaliating against the customer because that would be violating their right to honest and peaceful speech. However if a customer sends a letter to company full of misinformation or insults, the company is within its rights to retaliate by, for example, suspending any services to that customer or refusing to sell its products to that customer.
An important aspect of the right to honest and peaceful speech is whether it is a private or public communication. In private, two people can mutually consent to any kind of speech and as long as they both consent to it, it can be considered peaceful. However, if one of them withdraws consent and the other continues, it is no longer peaceful. In public communication, the broadcasting party cannot know in advance which members of the public consent or don’t consent to their communication, so there are at least two ways to honestly and peacefully communicate with the public without fear of punishment from the government: First, the legislature can enact some accepted standard for public communication. If the public communication is in compliance with these standards, it is protected. Second, if the public communication is not in compliance with the standards, but requires the audience to take a specific action to access it such as sign up to a website or newsletter, or subscribe to a television or streaming channel, the audience can simply decide not to receive that communication anymore. An opt-in approach ensures consent and therefore the communication is peaceful. However, if any such consensual communication is later shared with someone who does not consent, the person who shared it is liable for the act — not the original person who communicated it only to an opt-in audience. This means that people who enjoy saying hateful things can still do that together as long as everyone in the gathering or electronic space consents to receive that kind of communication, and they can continue doing that without fear of punishment by government as long as they limit their audience to people who want to hear that. However, they cannot go in public and repeat the hateful things — there would be a consequence for that.
Any person who receives a letter or delivery from anyone else outside the context of a non-disclosure agreement can publish the receipt and content of the letter or delivery so long as their own prologue is honest and peaceful and that the evidence shared is truthful and they cover up the violent or threatening parts of it that are not covered under the right. The keyword here is publish. If the person shares the hateful speech with someone in private with consent, they don’t need to cover up anything. Similarly when evidence is shared in court, it can be announced prior to displaying that it is a hateful message so anyone who doesn’t want to see or hear it has a chance to turn away or leave the room.
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