What limitations to freedom of speech are there in the US and Canada?

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Freedom of speech is understood to be fundamental in a democracy. What limitations to freedom of speech are there in the United States of America and in Canada? Is Holocaust denial an example?

user 1

Posted 2016-05-17T14:27:08.703

Reputation: 5 928

1This question should really be narrowed down if you want to ask about Holocaust Denial specifically. My conlaw book dedicates 450 very large, dense pages alone to the issue of freedom of speech, and it's far for complete; as it stands this question is way too broad. – Publius – 2016-07-13T08:44:03.620

Answers

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Up front: Holocaust Denial is not limited under U.S. law.

There is an adequate list on Wikipedia of free speech exceptions, that for convenience I will replicate here:

  • Communicative impact restrictions (e.g. incitement, elicitation)
  • False statements of fact (e.g. libel, slander, perjury)
  • Obscenity (very tightly interpreted, and only regulated in public)
  • Child pornography
  • Fighting words and offensive speech (closely related to incitement)
  • Speech owned by others (i.e. copyright violations)
  • Commercial speech (i.e. advertisement restrictions)

In general, free speech is highly protected in the U.S., and perhaps has greater protections than any other right, under the law. In order to restrict free speech under U.S. law, one must show that the speech itself causes immediate physical or monetary harm (e.g. child pornography, libel, false advertisement) or that it is likely to result in actions which will cause immediate physical or monetary harm (e.g. "lets go lynch that ^!@@$%!")

Worthy of note within discussions of free speech in the U.S. is the ongoing debate about "speech codes," which are shockingly common on U.S. campuses given how unpopular they are across the political spectrum. Some argue that speech that is emotionally damaging is sufficient harmful as to warrant restriction. Opponents have countered that the purposes of the university is to challenge existing ideas and that sometimes is uncomfortable. Importantly, none of this is a constitutional issue, except in state run universities, because private institutions can restrict speech if they want. Furthermore, it seems as though the impetus to restrict speech, even in this very narrow area, is waning although the situation could change.

The Pompitous of Love

Posted 2016-05-17T14:27:08.703

Reputation: 4 433

6Wish I could give this two upvotes and/or a star just for the mention of speech codes at American Universities. In fact, I'm prompted to perhaps ask a question on the very subject. Thank you again for a well written answer. Particularly, I'm wondering if it would be possible for the entire US, were it to all become privately owned in some form or other, to essentially completely lose its First Amendment rights. – Peter David Carter – 2016-05-17T15:56:08.020

1@PeterDavidCarter-Poulsen Note that the first amendment bans the government from attempting to restrict speech. Technically, it does not apply to private entities. – sabbahillel – 2016-05-17T18:56:30.147

@sabbahillel also, the 14th amendment applies the 1st to states, so there is that, too. And there is no technically about it. Private entities are under no requirement to permit speech in their venues. – The Pompitous of Love – 2016-05-17T19:00:30.787

1But members of the government and members of the public are allowed to use money raised through taxes, either directly or via subsidiaries, to buy almost anything someone is willing, or can be in some way coerced into selling. So functionally government could easily do so. Unless one considers only the people specifically, directly elected to any office termed 'government' or 'governmental' would be unable to conduct private enterprise aimed at destroying free speech. In which case that would hold the people above the government, but who would want to run for government in that case? – Peter David Carter – 2016-05-17T19:47:01.103

10@PeterDavidCarter-Poulsen I literally have no idea what you are talking about, or what this means in the context of this question. – The Pompitous of Love – 2016-05-17T19:51:55.517

2It's the logical implication of what you are saying. If people can buy things in order to restrict free speech you're just switching the power of censorship from election to mammon. Which really doesn't seem like a step up. – Peter David Carter – 2016-05-17T19:52:42.397

9@PeterDavidCarter-Poulsen I realize that you think you are making sense, but you are operating from so many assumptions that others don't share, and probably aren't even aware of—as in my case—that I have no idea what you are talking about. I applaud you for engaging in a public forum with others who don't seem to agree with you, but if you want people to respond, you have to actually explain what you mean. For example, how does buying or selling something restrict free speech? I bought a Big Mac earlier. Did that restrict someone's speech? – The Pompitous of Love – 2016-05-17T21:20:39.487

2@ThePompitousofLove If you are willing to learn I'm sure I'm willing to teach. – Peter David Carter – 2016-05-17T21:21:22.763

Let us continue this discussion in chat.

– The Pompitous of Love – 2016-05-17T21:24:15.833

1Sure. I'll be in chat in a second. I wish to note, though, that Big Macs do not restrict free speech, but McDonald's buying all restaurants in the area and saying when you were there you had to praise the Emperor would,for example. But of course, they'd probably use an umbrella company and it probably wouldn't be McDonald's. – Peter David Carter – 2016-05-17T21:26:12.600

2It's worth pointing out that not all false statements of fact are subject to libel or slander laws. A plaintiff would have to show harm of some kind to get anywhere with that. – Ben Collins – 2016-05-18T00:54:22.820

1It would be useful to note in the answer that in some situations the boundaries of free speech are still being worked out, as for example a bakery that doesn't wish to write congratulatory messages on a cake for a gay couple holding a wedding ceremony. If we include "freedom of expression" then a similar question has been raised for wedding photographers. Lower courts have made decisions restricting expression/speech but the Supreme Court has not yet made a decision for the entire country. – Readin – 2016-05-24T04:39:49.350

While this only holds true in some of the state's in the US, it's still technically in the US, but food disparagement laws in some states place the burden of proof on the defendant being sued. Which, in my interpretation is the equivalent of a loss of freedom of speech against certain food industries. – user288719 – 2016-05-25T22:09:42.357

2@Readin it is far from being the same issue, since the baker is not making any statement for himself (it would be like saying that the guy that prints the Republican Party leaflets HAS TO BE a Republican itself because he is printing the Republican Party leaflets). He is just engaging in business, and must follow the laws against discrimination. If the baker can discriminate against gay customers, he can do it too against black ones. A restaurant owner could discriminate against black customers due to "freedom of speech" because the napkin has "Enjoy your meal" printed on it... – SJuan76 – 2016-06-02T23:44:42.000

4@SJuan76 You have stated your opinion but a lot of people have a different opinion. This isn't the place to argue about how the Supreme Court should rule on the matter. Until the Supreme Court does rule, for good or bad, the question is "still being worked out". – Readin – 2016-06-03T03:58:03.493

1The only real oddity is the obscenity law; while other western countries have other boundaries (human dignity is considered higher in many countries, so that insults and slander are punishable even if it does not cause objective harm. Contentious are also the genocide laws.), they do not have such restrictions of obscenity. US citizens are often flabbergasted that their interpretation of the first amendment has a notable restriction that other countries do not have. – Thorsten S. – 2017-08-01T19:46:28.437

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In the United States, free speech is everything except when there is an illicit action associated with it.

One poster mentioned child pornography. That is not an exception to free speech. The prohibition is on using children in such pornography. If you want to do lifelike computer animations of children engaging in unnatural acts, knock yourself out, pervert. It's perfectly legal.

That is, unless you misrepresent it as having actual children in it to induce people to buy your smut. This is the same as any commercial misrepresentation designed to induce a purchase based upon false information.

Libel/slander is not an exception to free speech. You can say whatever you want about someone. However, if it is false, you have to compensate that person for their injury. There is no criminal penalty for libel/slander in the U.S.

You are free to say "There is a fire in the the theater" when you are at home. You can't say the same when you are in the theater when it will induce panic. If your at a church dinner and say "That Schmitty pisses me off, someone should shoot him" you're engaging in free speech. If you make that same statement at a gathering of hit men to induce them to take an action, your speech is still free but your inducement to kill is still punishable.

In other words, you are free to speak but your speech may have consequences that you are libel for in some limited circumstances.

IMHO, the Wikipedia article on Free Speech Exceptions is a very poor analysis of the law.

user3344003

Posted 2016-05-17T14:27:08.703

Reputation: 1 357

2Whether illustrated or animated, erotic depictions of children are not legal in Canada. – Dedwards – 2016-07-14T15:27:05.760

1Wonderful answer. I've found that folks "not from here" (the US) have a difficult time fully comprehending the extent of what "free speech" really is. You called out some important distinctions. – acpilot – 2016-07-27T04:20:48.750

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Your claim that "everything except when there is an illicit action associated with it" is incorrect: See obscenity laws and the Miller test. The first amendment does not protect "offensive" material.

– Thorsten S. – 2017-08-01T19:56:39.387