B.2(ab). Freedom of Speech and Expression

Everyone has the Right to speak freely, including through art, religion, and politics. The government may not punish or censor expression—except in the narrow instances listed here:

The freedom to speak your mind without punishment from the government may be the most quintessentially American right there is. Or at least we think of it as such. The truth is, we ban books, we refuse to fund art that offends us, and we insist that people whose opinions offend us can’t be allowed to speak at public venues.

So, what most of us really mean is that the freedom of speech we agree with is a fundamental right.

But Freedom of Speech and Expression is another subset of Freedom of Belief. If it doesn’t infringe on another person, it must be allowed. If it isn’t allowed, deliberation can’t happen.

But what about unspoken expression? Art informs our opinions in ways the spoken word can’t. Books reach people who never hear speeches. Poems rock our hearts in ways other forms of expression can’t do. So, it isn’t just the spoken word that’s vital. It is all expression.

Still, some things need restriction. They impose harm to another’s rights in one way or another. Here are the categories of expression that are not protected:

B.2(ab₁). Unprotected categories:

1. Speech intended and likely to incite imminent lawless action or panic;

2. Deliberate falsehoods causing demonstrable harm, including reckless disregard for truth in contexts where accuracy is legally required, including political speech during the one hundred eighty (180) day period before an election;

3. Lying under oath;

4. Deliberate misinformation about voting procedures, candidate eligibility, or official endorsements intended to mislead voters;

5. Commercial fraud, as defined by law;

6. True threats, including statements meant to instill fear of violence or unlawful harm;

7. Harassment, which is defined as targeting a Person or group in a sustained manner intended to intimidate, silence, or cause emotional harm;

8. Financial or in-kind expression by groups or corporations, because the wealth inequality between two groups or between a group and an individual crowds out the other's voice. Verbal, whether spoken, transmitted, or written, remains permissible.

B.2(ab₂). Obscenity. Offensive or obscene speech is protected. The sole exception is graphic sexual or violent content reasonably likely to be seen or heard by minors without parental consent. Reasonable limits to protect children are allowed, as long as they don't unduly burden adults.

Obscenity is a frequent target of censors. But that is problematic for two reasons. First (and by far the larger issue), what is “obscene” is in the eye of the beholder. There is no objective standard for it. Obscenity is used as a shield for why censorship should be allowed, but it is, ironically, merely the fig leaf covering the nakedness of their real argument. Second, you can object to content, you can question how it is made, you can consider it immoral, but none of those objections make the content rights-infringing in and of themselves. Expression, like any right, can only be curtailed when the rights of others are infringed, and then only by the least restrictive means. I’m uncompromising on that point. Still, there is substantial evidence[1] that certain content can be harmful to developing children, which is an affront to their Right to Bodily Autonomy, so a very narrow exception is allowed, restricting their access to graphic sexual or violent content.

A sharp critic might say, “Well, what about Adults? Doesn’t the same content harm them?” To that, I have a two-pronged answer. First, the existing research is weaker. But more fundamentally, adults are better equipped to choose whether to consume that type of media.

B.2(ab₃). Private Autonomy. Private individuals and groups cannot be compelled to host or support speech with which they disagree. In that spirit, but respecting the influence algorithms have on the rights of other individuals, algorithms used to distribute or prioritize publicly available information on private platforms may remain proprietary, but the general principles, inputs, and effects of their design must be made transparent to the public.

Finally, we must protect both those who own and those who consume media platforms. It’s definitely a violation of free expression rights to force anyone to host speech they disagree with. This paragraph preserves their autonomy, even if they host the speech of other individuals.

At the same time, people who use algorithm-based platforms should reasonably be able to understand how their speech gets distributed and who will see it. It isn’t necessary to know the code or specific mathematical formulas. Still, the general means the algorithms use to promote or restrict posts should be readily available to users. TikTok and Facebook are current examples where this doesn’t happen, to the great frustration of their users. That frustration is so great that users on all sides of the social and political spectrum hurl accusations of censorship (which I contend is the right of the platform, but it should be open about it). It isn’t my position that the government should micromanage what gets promoted or restricted – those are their platforms. They can make editorial choices, even if they do so via an algorithm. The only principle at play here is transparency. Users should know how and why things happen.

---

[1] For more on this subject, see research published by the American Psychological Association, Pediatrics, Journal of School Health, and Developmental Psychology.