When Can Free Speech be Limited?

In response to my previous post, Andy Wheeler asks the following excellent question:

Hello - I enjoyed your post but how do reconcile free speech with sexual harassment laws, or lying to cause a panic (yelling fire in a crowded theatre)?

This is the key issue that those far more knowledgeable than myself have been wrestling with for decades. I do believe that in a free society people have the right to express their views, no matter how offensive they might be. Yet free speech, like any other right, is not an absolute. In the examples you cite, the speech in question ceases to be the expression of an opinion and becomes a malevolent assault on the rights of others. That, in my view, is when speech ceases to be protected.

I do believe that Islamists should be allowed to preach their views in Western societies, no matter how hate-filled and anti-Semitic their remarks often are. The place where I would draw the line is when that speech turns into an open incitement to violence and terrorism. A radical Salafist preacher praising the 9/11 atrocities, as vile and disgusting as decent people find such sentiments, should be tolerated. If that same preacher encourages his followers to go stage a 9/11 of their own, then he has crossed the line.

Supreme Court Justice Robert Jackson put it best in his dissent in the 1949 decision Terminiello v. City of Chicago:

This Court has gone far toward accepting the doctrine that civil liberty means the removal of all restraints from these crowds and that all local attempts to maintain order are impairments of the liberty of the citizen. The choice is not between order and liberty. It is between liberty with order and anarchy without either. There is danger that, if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.


Unfortunately, there will always be gray areas, no matter where the line is drawn. That's why we have courts. Still, I would draw the distinction between speech that merely expresses an opinion, and that intended to deny the rights of others, through either harassment, instigating physical harm, or inciting violence.