Recently, ARI senior fellow Onkar Ghate had an essay published in an undergraduate philosophy textbook, Problems in Applied Ethics (Bloomsbury Press, 2026). The original essay was invited by the editor Steven B. Cowan, in particular to comment on whether or not hate speech laws were legitimate exceptions to the principle of free speech. In the essay, Ghate challenges the very idea of exceptions to free speech.
The full textbook has now been published, and we are pleased to have received permission from Bloomsbury Press to reprint Ghate’s essay in two parts. (The textbook also contains a counterpoint essay by the philosopher Andrei Bespalov, along with a pair of responses by both Ghate and Bespalov to each other.) This piece represents the latest work in Ghate’s ongoing project of defending free speech. You can read more in Defending Free Speech (Steve Simpson (ed)., ARI Press, 2016) and The First Amendment: Essays on the Imperative of Intellectual Freedom (Tara Smith (ed.), ARI Press, 2024).
Free Speech Absolutism (Part 1)
With the exception of the United States, hate speech laws prevail throughout the Westernized world. In my native country, Canada, for example, “Everyone who, by communicating statements, other than in private conversation, willfully promotes hatred against any identifiable group is guilty of (a) an indictable offence and is liable to imprisonment for a term not exceeding two years; or (b) an offence punishable on summary conviction.”1 Canadian law puts special emphasis on denial of the Holocaust: “Everyone who, by communicating statements, other than in private conversation, willfully promotes antisemitism by condoning, denying or downplaying the Holocaust (a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or (b) is guilty of an offence punishable on summary conviction.”2
As these sections of Canadian law should make clear, what is being legally prohibited is speech. The government has the power to censor the expression of certain ideas or viewpoints. In the United States, by virtue of the First Amendment, hate speech laws such as these would (or at least should) be declared unconstitutional. “Congress shall make no law,” the First Amendment reads in part, “abridging the freedom of speech, or of the press.”3 No matter how irrational or abhorrent the content of a person’s speech, no law means no law.
The US Constitution, in other words, deprives the government of the power to censor; it treats the right to freedom of speech as absolute, permitting no legal abridgement, no carving out of exceptions. This, I will argue, is the correct approach to freedom of speech. Or at least if the fundamentally new form of government that the Declaration of Independence and the US Constitution brought into existence is the correct form of government, which I believe it is, then freedom of speech should be regarded as an individual, absolute, inviolable right.
The New, American Form of Government
The radicalism of the American Revolution consists in rooting proper government, not in the theories of collectivism but of individualism. Previous forms of government regarded the individual as subordinate to the state and its goals or ends. The individual was a subject, the quasi property or possession of the nation as a whole and its representatives or spokesmen, be it the king or the pope or the aristocracy or the majority, who were responsible for upholding the collective will. On this conception of government, a collective good — the glory of our nation, the propagation of our religion, the advancement of the public interest — transcends the interests and life of the individual. The individual is subordinate to this collectivist goal, a mere means to an end.
In principle, though certainly not in full practice given the continuation of slavery, the Declaration and Constitution broke with this long-standing view. The individual was no longer viewed as subordinate to some higher goal or end embodied by the state. The individual was the end, the state the means. That the individual has a right to the pursuit of her own happiness, a moral right to live her own life, preexists government.4 Government, properly, is created solely to secure and protect these rights: a proper government protects the freedom of every individual to pursue her own happiness. On this new conception of government, we as individuals are no longer subjects but citizens. As citizens, we are not subordinate to government; government is subordinate to each of us. As the Declaration famously states these points,
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government.5
Thus, representative, constitutionally limited government came into existence. The government is the representative of the individual: each individual delegates to government the power to secure and protect her rights, her legitimate freedom of action. That is the only enforcement power she can delegate to government. And that delegation establishes the only legitimate function of government: to secure and protect the rights of each and every individual within its jurisdiction, including, as the First Amendment makes clear, the right to freedom of speech.
Freedom of Speech under Collectivist Forms of Government
Under collectivist forms of government, the ruling authorities have the power to censor the speech of individuals in order to further the specific collectivist goal that the state is thought to embody or secure. If, for instance, the glory of our nation or the propagation of our religion is thought best served by silencing a particular individual, the authorities lawfully can silence that individual. The Church’s censoring of Galileo by the charge of heresy to prevent him from expounding the heliocentric theory of the solar system is an important historical case in point, one with which the creators of America’s new form of government were certainly familiar.6
Today, we can see this same collectivist approach in Canadian hate speech laws. At first glance, Canada seems to recognize the individual’s absolute right to freedom of expression in terms similar to those of the First Amendment. Section 2 of the Canadian Charter of Rights and Freedoms states that “Everyone has the following fundamental freedoms: (a) freedom of conscience and religion; (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication; (c) freedom of peaceful assembly; and (d) freedom of association.”7
But in reality, these supposed guarantees of the individual’s freedom of thought and expression are not held by right. They are held by permission of the government, as the enforcer of a collectivist goal, in this case, the public interest. Section 1 of the Charter states that “The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”8 In terms of freedom of thought and expression, this means that so long as the individual exercises his thought and expression in a way that the government deems to be in the public interest, the government permits the individual to do so. But if he exercises his thought and expression in a way that is deemed to harm the public interest, the government can censor him. This is precisely what the Canadian hate speech laws do: they outlaw the expression of certain content when expression of that content is deemed incompatible with the so-called public interest.9
Just as the Canadian government can censor speech, it can permit speech with the very same content when it deems that speech to be in the public interest. A valid defense against the charge of hate speech, as mentioned in an earlier endnote, is to show that one’s “statements were relevant to any subject of public interest [emphasis mine], the discussion of which was for the public benefit [emphasis mine], and if on reasonable grounds he believed them to be true.”
In Canada, as in other countries with hate speech laws, freedom of speech is not an absolute; it is not an individual right, but a permission granted by the state in the name of a collectivist goal, a permission that can be and sometimes is rescinded in the name of that collectivist goal.
Freedom of Speech under the New American Form of Government
The US approach is fundamentally different because it is individualistic, not collectivistic. Neither the Declaration nor the US Constitution charges the government with the task of advancing the public interest when the “public interest” is conceived to, at least sometimes, transcend the interests and rights of specific individuals. The task of the government is to secure the rights of each and every individual, not to abridge any individual’s rights in the name of some collectivist goal or cause. And in the American approach, the rights to freedom of thought and speech are regarded as integral to the rights listed in the Declaration: the individual’s rights to life and the pursuit of happiness. Why?
To live my own life and pursue my own happiness, I have to possess the freedom to chart and then travel my own course, to figure out for myself what is true and good and to then follow through on my convictions in action, all the while recognizing and respecting the same freedom of action of every other individual in my society. The authors of the Declaration and Constitution understood that the pursuit of happiness is a difficult endeavor, requiring careful thought and much effort on the part of each individual, but it’s possible to a rational being who is left free to function as a rational being.
To figure out what I think is true and what I think is good requires that I’m free to examine any and every idea, argument, viewpoint, fact, potential lead, and alleged piece of evidence that to me seems relevant, and to express, listen, discuss, argue, and debate with whomever I judge it valuable to do so. The quest for the true and the good is difficult, and no doubt I’ll make false starts and go down wrong alleys. In discussing with others, I’ll find some of what they think and say helpful and illuminating, and some wrongheaded, irrational, even evil. But these are precisely the judgments I must make for myself if I’m to grasp the true and the good.
To cede to government the power to curtail the freedom of thought and expression, to allow government to declare some viewpoints heretical or inimical to the public interest, and so to declare certain books or ideas or arguments off limits to me, on penalty of fines or imprisonment or death, is to abandon my quest for the true and the good. Instead, government officials will decide for me what counts as viewpoints worth entertaining, arguments worth considering, or leads worth investigating — and I’ll content myself with sifting through their blinkered view of reality. To accept such a predicament is to relinquish control of my life and happiness. How can I decide if Galileo’s heliocentric theory or someone’s denial of the Holocaust is well-reasoned or not, rational or perverse, without being able to read their books or listen to their claims?
It does not matter if the government censors viewpoints that are in fact true, like Galileo’s, or false and abhorrent, like the denial of the Holocaust. If I cannot consider any and all viewpoints and arguments that I judge might have some bearing on the truth — even if I later come to think, as will often be the case, that some of these viewpoints are false and even corrupt — I cannot genuinely make up my mind. Instead, someone is trying to make up my mind for me.
To put the same point another way: if I don’t yet know that denial of the Holocaust is false and perverse, I cannot permit government to declare that viewpoint off limits to me, to prevent me from even considering it; if I know that denial of the Holocaust is false and perverse, it’s only because I was free to consider the matter.
This, in short, is the case for freedom of thought and expression on an individualist approach. If government is not the master but the servant of the individual, then it cannot possess the power to censor. As an individual, I don’t have the right to tell other individuals what they can or cannot think or say or listen to, and so could not delegate enforcement of this right to government. And likewise, no other individual has the right to tell me what I can or cannot think or say or listen to, and so could not delegate enforcement of this right to government. In the individualist as against the collectivist approach, government does not have the power to censor any individual. As the First Amendment declares, freedom of speech is an absolute: a proper government must make no law abridging it.
Section 319(2) of the Criminal Code of Canada (https://laws-lois.justice.gc.ca/eng/acts/c-46/section-319.html). “Defences” against the charge of communicating any non-private statement that “willfully promotes hatred against any identifiable group” mentioned in the law include the following in Section 319(3): “(a) if he establishes that the statements communicated were true; (b) if, in good faith, the person expressed or attempted to establish by an argument an opinion on a religious subject or an opinion based on a belief in a religious text; (c) if the statements were relevant to any subject of public interest, the discussion of which was for the public benefit, and if on reasonable grounds he believed them to be true; or (d) if, in good faith, he intended to point out, for the purpose of removal, matters producing or tending to produce feelings of hatred toward an identifiable group in Canada.”
Section 319(2.1) of the Criminal Code of Canada (https://laws-lois.justice.gc.ca/eng/acts/c-46/section-319.html).
See https://www.archives.gov/founding-docs/bill-of-rights-transcript.
Contrary to the Declaration, we need not, and for philosophic reasons I think should not, ground these preexisting moral rights in the alleged existence of a god or of some other supernatural phenomenon.
See https://www.archives.gov/founding-docs/declaration-transcript.
Here are two brief accounts of Galileo’s conflict with the Inquisition: https://www.history.com/news/galileo-copernicus-earth-sun-heresy-church and https://newsroom.ucla.edu/releases/the-truth-about-galileo-and-his-conflict-with-the-catholic-church.
See https://laws-lois.justice.gc.ca/eng/const/page-12.html.
Ibid.
For more on why the “public interest” is a collectivist term and incompatible with the rights of the individual, see Ayn Rand, “The Pull Peddlers,” in Capitalism: The Unknown Ideal (New York: New American Library, 1967) (https://courses.aynrand.org/works/the-pull-peddlers/).
Image credit: Caption Photo Gallery / Connect Images / via Getty Images
No matter how false, evil, "hateful", and "socially destructive" the speech, by no matter how evil and hateful the person, with no matter how evil and hateful the intent, free speech is still infinite and untouchable.
The level of hidden, socially-engineered censorship in this country is abnormally high in spite of any theoretical Constitutional protections.