Limiting Free Speech: A Framework for Discussion

Freedom of speech and the press (more generally, freedom of expression) have long been recognized as vital cornerstones of free and democratic government. Although the specifics differ quite widely, the jurisprudential trend over the last 50 years both in the United States and in Europe has been to expand freedom of expression, by expanding the range of activities brought under its umbrella and by reducing the weight given to other rights when they come into conflict with freedom of expression. To a great extent, that expansion has been justified as promoting democratic government. At the same time, concerns about the unintended dissemination of misinformation, and even more the deliberate propagation of fake news - and the labeling of true narratives as fake news - suggest that this expansion has not been without costs. In other words, even if freedom of speech is necessary in a democratic society, can there be too much of this admittedly good thing, and if so, how much freedom of speech is too much? While not having the hubris to propose a definitive answer to this question, the paper aims to raise many of the issues that would have to resolved in proposing such an answer, and relate them to contemporary developments in European and American practice.