What Does “Free Speech” Mean?

(This is something I posted on facebook the other day, reposted here so you can see what sort of stuff I’m likely to post about here).

One of the problems with conversations about “free speech” is that there are at least three related but separate kinds of questions that people refer to when they say “free speech.” Thus, sometimes when a person says “free speech,” they are referring to one of these questions, but everyone else hears it as referring to a different one, which makes things blurry and confused.

First, “free speech” can refer to specific legal rights afforded by particular sets of laws, usually in a constitution. In the U.S., this is the First Amendment and related caselaw. In South Africa, it’s Chapter 2, Section 16 of their Constitution. Here, the question is “is this particular kind of speech or prohibition on speech illegal under these laws.” That’s not a normative question — it doesn’t ask what the law *should* be, just what the law *is.*

Second, “free speech” can refer to the normative version of the above — that is, something like the human right to free speech which different governments ought to respect. These questions thus don’t ask what the law *is,* they ask what the law *should be.* These are questions about the proper role of government in policing and protecting speech.

Third, “free speech” can refer to a set of broader philosophical propositions about how society as a whole, not just the government, should treat speech. There, the question is not about what the *law* should do about a particular instance of disruptive or dissenting speech, but rather how people should behave to the person who said it. A question here might refer to how operators of non-governmental fora (social media networks, churches, private universities, friend groups, etc.) should handle difficult or disagreeable speech, and what any (non-legal) consequences should look like.

People use the phrase “free speech” to refer to all of these categories pretty interchangeably, and that creates some confusion. For instance, I might say “free speech does not include hate speech,” and depending on what I mean by “free speech,” that sentence means radically different things.

If I’m in category 1, then, in the United States, that sentence is false — the Constitution, as interpreted by the Supreme Court, does protect a lot of stuff that might reasonably be called “hate speech.” In Canada, however, the sentence is true — Canada prohibits what it calls “hate propaganda,” and sometimes prosecutes people for statements that, in the U.S., would be protected by the First Amendment.

If I’m in category 2, then the statement is an aspirational one — I might be saying that the Constitution of the U.S. should be amended or re-interpreted to allow prohibitions on “hate speech.” (I don’t personally think this is a good idea, but that’s a separate question.)

If I’m in category 3, then I’m saying something more like “people who engage in hate speech should suffer social consequences and not be listened to,” and I’m generally in favor of that. But you can see how each of these propositions is very different, and you can see how if I think I’m saying something in one category, but you think I’m saying something in a different category, we can really end up miscommunicating. So: let’s all try to be clear what we mean when we’re talking about “free speech,” and we’ll all understand each other better.