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.
Read Part 1 here.
What the Right to Freedom of Expression Means and Protects
I’ve now briefly discussed the individualist justification for the right to freedom of speech or freedom of expression.1 Now let’s consider in a bit more detail what the content of this right is, what the right encompasses, and what it does not.
The right to freedom of expression, like all rights, sanctions and protects an individual’s freedom to take certain actions. As the philosopher Ayn Rand formulates the point in a seminal essay, “The concept of a ‘right’ pertains only to action — specifically, to freedom of action. It means freedom from physical compulsion, coercion or interference by other men.”2 The right to property, for instance, “is not the right to an object, but to the action and the consequences of producing or earning that object. It is not a guarantee that a man will earn any property, but only a guarantee that he will own it if he earns it. It is the right to gain, to keep, to use and to dispose of material values.”3
No right guarantees a specific outcome. Just as the right to property protects your freedom of action to, for instance, pan for gold on your land and to own any gold you discover, but does not guarantee that you will discover any gold — so the right to the pursuit of happiness protects your freedom of action to try to build a happy life, but doesn’t guarantee that you will succeed. Similarly, the right to freedom of speech “does not mean that others must provide a man with a printing press, a publishing house, a newspaper, a theater or a television studio through which to express his views.”4 It sanctions and protects only a certain form of action: “the freedom to advocate one’s views and to bear the possible consequences, including disagreement with others, opposition, unpopularity and lack of support.”5
For something to be an individual right, it must be co-possible, which means every individual must enjoy the same freedom of action, and no individual can legitimately interfere with the sphere of action protected by another’s right. Your rights entail that other people refrain from trespassing on your rights, just as their similar rights entail that you refrain from trespassing on their rights. But rights do not require that other people perform any particular action: that requires their voluntary, uncoerced consent.
The right to freedom of association, for example, means that you can try to associate with whomever you choose — and that other people can refuse to associate with you and go their separate way. The right to freedom of trade means that you can buy and sell with whomever you choose — and that other people can refuse to buy from you if, say, they think the price you’re asking is too high, or refuse to sell to you if they think the price you’re offering is too low. The same goes for freedom of speech. Important in understanding this right is understanding that “Freedom of speech includes the freedom not to agree, not to listen and not to support one’s own antagonists.”6
It is important to understand, in the context of hate speech laws and other proposed abridgments of the right to freedom of expression, that the exercise by an individual of any of her rights can and often will affect other people in ways they judge both positively and negatively. But neither are grounds to abridge the right — not so long as those other people retain the same rights, that is, the same freedom of action. This means in particular that the fact that one person’s exercise of her rights “harms” (i.e., in some way negatively affects) another person is not sufficient grounds to outlaw the action.
For example, I may paint the front door of my house red, a color my neighbor dislikes, or plant a maple tree in my backyard, a type of tree that unfortunately evokes for my neighbor memories of home and a difficult childhood. But these negatives experienced by my neighbor, though real, don’t give her veto power over the color I paint my front door or the trees I plant in my backyard, not so long as she retains the same freedom of action: She can paint her front door green and plant birch trees in her yard.
Or: I may open a new office building for a thousand employees, and the increased lunchtime foot traffic may help make nearby restaurants more profitable. But though this positive effect on the restaurants is real, it doesn’t entitle me to veto their increased sales unless they share with me a portion of their increased profits. If I wanted to try to take advantage of the increase in foot traffic, I retain the same freedom of action as those restaurant owners: I could open and run my own restaurant.
Or: smartphone manufacturers like Apple may make the cameras on iPhones so good that most people stop buying film or digital cameras, and companies like Canon lose sales. But this negative, though real, does not give Canon veto power over the smartphones Apple can design and sell, not so long as Canon retains the same freedom of action: Like Apple, Canon is free to try to design and sell its own smartphones.
The same goes for the right to freedom of expression. Consider first the commercial realm. If Apple advertises the cameras on its latest iPhones — a form of expression Apple of course regularly engages in — and those advertisements persuade customers to buy an iPhone over a Canon PowerShot camera, Apple’s expression does result in a negative for Canon. But this negative does not give Canon the right to demand that Apple’s advertising be silenced, not so long as Canon retains the same freedom of action: the freedom to advertise its own cameras and try to persuade people to buy them.
Consider now the intellectual and ideological realms. Atheists may persuade people to abandon their religion, and churches may see a drop in attendance. Though a real, negative effect, it does not give priests the right to demand that atheists be censored, not so long as the priests retain the same freedom of action, the freedom to try to persuade people that they should not abandon but embrace religion. Even if the priests are scandalized and upset by the atheists’ views, which they regard as blasphemous, this does not give them the right to demand that atheists be silenced.
Or: a socialist or white nationalist may persuade people of their collectivistic doctrines, and in the process teach people to hate and despise large swaths of other people, be it profit-seeking businessmen in the case of socialism or darker-skinned individuals and immigrants in the case of white nationalism. This may lead to a social atmosphere that is less benevolent, less welcoming, less American, and to demands for the passage of anti-business or anti-immigration laws, which are certainly experienced as real negatives by the individuals being demeaned.7 But in neither case do the opponents of socialism or of white nationalism have the right to demand that socialists or white nationalists be censored, not so long as they possess the same freedom of action: The opponents are free to try to persuade people of the irrationality of socialism and of white nationalism (and I hope they exercise this freedom).
It may surprise you that I list socialism as an irrational doctrine that foments hatred against innocent people, but that is part of the point. Though this is my actual evaluation of socialism, I’m not trying to convince you of the truth of that evaluation.8 Rather, the example illustrates that what constitutes irrational doctrines that foment unjust hatred against whole groups of people is a contentious matter. As in today’s world, historically this has been an issue over which there has been heated disagreement. Catholics have regarded Protestant doctrines in this way, and Protestants likewise have regarded Catholic doctrines in this way, similarly for Sunni and Shiite Muslims, for some Enlightenment thinkers toward Christian doctrines and for some Christians toward Enlightenment doctrines, for abolitionists toward proslavery doctrines and for enslavers toward abolitionist doctrines, for capitalists toward the doctrines of socialism and for socialists toward the doctrines of capitalism. Whose speech should hate speech laws ban — and by what right? These examples from history help showcase, from another angle, the danger of claiming that your neighbors have the right to veto your freedom of expression if they consider what you say irrational, hateful, or demonizing of large groups of people.
As an individual, the only right you possess to oppose expression which you regard as evil is to ignore the speaker and walk away or to engage in counterspeech. To the government we delegate the power to enforce our rights, but it is not within my rights to silence my neighbor, even when I abhor what she is saying, and it’s not within her rights to silence me, even when she abhors what I’m saying. Just as her expression, however objectionable to me, does not interfere with or trespass on my freedom of action, so my expression, however objectionable to her, does not interfere with or trespass on her freedom of action.
What the Right to Freedom of Speech Does Not Protect
If the individual’s right to freedom of expression is indeed a right, then, like all rights, it is absolute: It permits no breaches or exceptions. Many defenders of free speech deny this. They contend that the right to freedom of expression is compatible with some exceptions, such as legal prohibitions against threats, incitements to violence, and harassment. For the legitimacy of hate speech laws in particular, then, the question becomes whether or not they too should be considered allowable exceptions to the right to freedom of expression.
Nadine Strossen, for example, in her book HATE: Why We Should Resist It with Free Speech, Not Censorship, writes approvingly that
government may punish speech when necessary to avert serious harm that cannot be averted through non-censorial measures — notably, law enforcement and counterspeech. Accordingly, government may punish “hate speech” (or speech conveying any other message) when, in context, it directly, demonstrably, and imminently causes certain specific, objectively ascertainable serious harms. The Supreme Court has identified several kinds of situations in which speech satisfies this general emergency standard, specifying particular criteria for each. These criteria are appropriately strict, to circumscribe officials’ opportunity to assert the potential harm as a pretext for suppressing speech merely because its message is disfavored, disturbing, or feared.9
She goes on to discuss, among a few others, such emergency exceptions as “True Threats,” “Punishable Incitement,” and “Harassment.”10
But this conceptualization in terms of emergencies and exceptions is misguided. Many types of actions involve, or at least often involve, speech or other forms of expression and communication. This does not mean that all such actions are protected by the right to freedom of expression or that a legal system, in order to prohibit these actions, must carve out exceptions to the right to freedom of expression. Properly understood, threats, incitement, and harassment are not exceptions to the right to freedom of expression; they are actions that fall outside the protection of this right in the first place. Why? Because these acts are, in essence, not acts of expression or communication to a willing audience, which is free to walk away (and engage in counterspeech), but acts of coercion, which seek to override other people’s voluntary choices and consent.
To see this, let’s briefly consider the nature of threats, incitement, and harassment.
Threats
If I walk into a bank and declare, “This is a stick up. Hand over all your cash!” — and the police come to arrest me, it’s absurd for me to protest that the police are interfering with my right to freedom of expression, since, after all, I was just having a conversation with the teller. Why is my protest absurd? Because I have introduced into the situation physical coercion. I have changed my relationship with the bank from the voluntary to the coercive. If, say, I don’t like the interest rate the bank is offering, I’m free to go elsewhere; if the bank considers my initial deposit to be below its minimum threshold for that particular kind of savings account, it can refuse to open an account for me. Each of us is free to walk away if we don’t consent to the particular terms the other is offering. But this is no longer true after my threat. The teller cannot just walk away — not without the worry that I might put a bullet in his back if he does.
It does not matter if I actually have a gun with me or not, or if I do, whether I intend to start shooting if the teller refuses my demand. As long as it is reasonable for the teller to think I might carry out my threat, his decision-making should no longer be seen as fully voluntary but as coerced, as occurring under physical duress. This is why such threats are prohibited by law. The verbal threat that I may resort to physical coercion if I don’t get my way is the introduction of coercion into the relationship. It is my declaration that I will not let the other party walk away, that I will deny them that freedom of action, that is, deny them that right. The police do not have to wait until I start shooting before they arrest me.
The essence of a threat is that it is not an act of persuasion, rational or irrational, in which the other party is free to walk away if they disagree, but an attempt to bypass the need for persuasion. What a court must decide, therefore, is whether an actual threat has been made; if it decides that a threat has been made, there is no legitimate objection that prohibiting the threat violates the right to freedom of speech protected by the First Amendment.
Incitement
Perhaps the easiest way to grasp the essential nature of incitement is to see its similarity to plotting a crime, which properly is held to be an illegal activity on the part of the co-conspirators. Like many other forms of criminal activity, plotting a crime involves speech or expression. A crew of four who are planning to rob a bank will be communicating with one another. Which bank are they targeting? What kind of security system does it have? Where will they get the explosives to blast off the safe’s door? Who will drive the getaway car? And how will they split the money afterward? This is what they are discussing. But for the law to treat the plotting of a crime as itself a crime is not an interference with the plotters’ freedom of speech, for the same basic reason as in the case of threats: The plotters are introducing physical coercion into human affairs.
The plotters are not planning to make the bank an offer — “We want to buy all your deposits on hand for a thousand dollars, do you accept?” — an offer the bank is free to refuse. The plotters are planning to physically seize the bank’s deposits without the bank’s consent. In such a situation, the police do not have to wait until the plotters enter the bank, or blow off the safe’s door, or start driving away with the money, before they can arrest the plotters. The attempt to rob the bank begins with the active plotting and becomes criminal at that point for all who are actively involved. Even if the mastermind of the plot plans to stay home and to send only his henchmen to enter the bank and seize the money, all are guilty of a crime.
Incitement can be regarded as hatching a criminal plot in the moment. It is more spontaneous, less considered or deliberative than, say, plotting to rob a bank, but no less criminal. For instance, if a group of people is protesting an election result outside a government building, and someone in the group starts to egg the crowd on, to declare that they will never get justice, that they will lose their country if they don’t do something now, and that maybe they should take the law into their own hands, maybe some government officials need to be hanged, and these words help rile up the crowd, and the crowd storms into the government building, the person who helped rile up the crowd is guilty of incitement, as if he helped plot the crime. In other words, he is part of the action of breaking into the government building, even if he, like the mastermind who plotted a bank robbery, never entered the bank. Of course, the individuals breaking into the government building are also guilty of a crime, like the henchmen who break into the bank, but the point is that so is the inciter, who actively helped launch the action.
And again, the fact that the action of incitement, like the action of plotting, involves speech does not mean that in legally prohibiting it, the government is interfering with freedom of speech or carving out some exception to the right to freedom of speech. Just as plots to initiate the use of physical coercion are not essentially acts of expression, so inciting others to initiate the use of physical coercion is not essentially an act of expression. Both are attempts to coerce others, to bypass their voluntary participation and consent, and their freedom to walk away.
Harassment and Disturbances of the Peace
Like threats and incitement, certain forms of harassment and certain forms of disturbances of the peace are also often categorized as permissible exceptions to the right to freedom of speech, but should not be. If I follow a man or woman through the subway system of New York City, commenting on their appearance and attractiveness, or if every morning I ring the doorbells of all the houses on my street, trying to convince their occupants to convert to Christianity, I’m guilty of harassment. And it is not a legitimate defense for me to say that I’m expressing my views, so my action is protected by the First Amendment. Precisely because I am not allowing the other person to consent to the activity — to decide if they want to listen and engage or not — I cannot claim that my action is part of the freedom of action protected by the right to freedom of expression.
Similarly, if in the backyard of my house, I play my speaker system so loud that it disturbs my neighbors, I am guilty of disturbing the peace. The freedom of action encompassed by my freedom of speech never included the freedom to blare my speaker system outdoors at 110 decibels. Individual rights, as I indicated above, must be co-possible. I have the right to listen to what I want to listen to, but so do my neighbors. That in blaring my speaker system, I’m disturbing the peace really means that I’m depriving my neighbors of their freedom of action to decide what they want and don’t want to listen to. My music is so loud that even if they don’t want to listen to it, the sound nevertheless intrudes upon them. There is no right to trespass on the rights of others, in this case, on their right to freedom of expression. I never had the right to force my neighbors to listen to the music I like, and in prohibiting me from doing so, the government is not carving out an exception to freedom of expression but is rather protecting my neighbor’s right to freedom of expression.
In short, threats, incitements, and verbal harassment and disturbances of the peace are not exceptions to the right to freedom of speech. They are not essentially acts of expression and should not be classified as such. If a legal system prohibits these actions — and when these actions are properly defined and delimited, it should — it is not carving out exceptions to freedom of expression.
Conclusion
The right to freedom of speech is an absolute. Any individual who values his own pursuit of the true and the good should claim the right to freedom of thought and to freedom of expression. She should never relinquish these rights, never cede to government the power to censor any form of expression, to infringe in any way on the individual’s right to think and speak freely. But in embracing freedom of expression as an absolute, one is not thereby forced to tolerate threats, incitement, harassment, and the like as the supposed price one must pay for a free society, because such acts are not essentially expressive acts. They are acts that introduce physical coercion into human relationships, acts that seek to bypass other people’s voluntary consent and participation, and the legal prohibition of these acts is compatible with, indeed often part of protecting, the right to freedom of expression.
[1] “Expression” is the better term, encompassing as it does both verbal and nonverbal content, such as that of a symphony or ballet.
[2] Ayn Rand, “Man’s Rights,” in The Virtue of Selfishness (New York: New American Library, 1964), 110 (https://courses.aynrand.org/works/mans-rights/).
[3] Ibid., 110–11.
[4] Ayn Rand, “Freedom of Speech,” in The Ayn Rand Column, rev. 2nd ed. (New Milford: Second Renaissance Books, 1998), 71.
[5] Rand, “Man’s Rights,” 114.
[6] Ayn Rand, “The Fascist New Frontier,” in The Ayn Rand Column, 106.
[7] If anti-business or anti-immigration laws are actually passed in the United States, I contend that they should often be declared unconstitutional by the courts because the laws abridge the third fundamental right explicitly mentioned in the Declaration and featured prominently in the Fourteenth Amendment to the Constitution: the right to liberty. But that, of course, is an argument for another time.
[8] But for a bit more on this evaluation of socialism, see the entry on socialism in The Ayn Rand Lexicon (New York: Penguin, 1998), 463–66 (https://courses.aynrand.org/lexicon/socialism/); and Rand’s essay, “America’s Persecuted Minority: Big Business,” in Capitalism: The Unknown Ideal, 44–62.
[9] Nadine Strossen, HATE: Why We Should Resist It with Free Speech, Not Censorship (Oxford: Oxford University Press, 2018), 59. As the title of her book should make clear, Strossen does not regard hate speech laws as legitimate exceptions to freedom of speech.
[10] Ibid., 59–68.
“Expression” is the better term, encompassing as it does both verbal and nonverbal content, such as that of a symphony or ballet.
Ayn Rand, “Man’s Rights,” in The Virtue of Selfishness (New York: New American Library, 1964), 110 (https://courses.aynrand.org/works/mans-rights/).
Ibid., 110–11.
Ayn Rand, “Freedom of Speech,” in The Ayn Rand Column, rev. 2nd ed. (New Milford: Second Renaissance Books, 1998), 71.
Rand, “Man’s Rights,” 114.
Ayn Rand, “The Fascist New Frontier,” in The Ayn Rand Column, 106.
If anti-business or anti-immigration laws are actually passed in the United States, I contend that they should often be declared unconstitutional by the courts because the laws abridge the third fundamental right explicitly mentioned in the Declaration and featured prominently in the Fourteenth Amendment to the Constitution: the right to liberty. But that, of course, is an argument for another time.
But for a bit more on this evaluation of socialism, see the entry on socialism in The Ayn Rand Lexicon (New York: Penguin, 1998), 463–66 (https://courses.aynrand.org/lexicon/socialism/); and Rand’s essay, “America’s Persecuted Minority: Big Business,” in Capitalism: The Unknown Ideal, 44–62.
Nadine Strossen, HATE: Why We Should Resist It with Free Speech, Not Censorship (Oxford: Oxford University Press, 2018), 59. As the title of her book should make clear, Strossen does not regard hate speech laws as legitimate exceptions to freedom of speech.
Ibid., 59–68.
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