Free Speech: What Everyone Needs to Know

Freedom of speech is one of the basic rights essential to any free, democratic society. Upon that pretty much everyone can agree. But, as ever, consensus evaporates once one goes into detail.

Professor Nadine Strossen is a US academic. She has written a concise book which functions both as an introduction to the subject and a polemic in favour of more (but inevitably not absolute) freedom of expression. The work is dedicated to Salman Rushdie, whose experience of being threatened with murder for writing a book shattered any illusions in Britain about a consensus regarding liberal democratic values.

Strossen frames many of the  issues in question and answer form, her answers seeking to promote the widest possible conception of freedom. The topics covered include blasphemy, hate speech, pornography, violent speech, extremist or terrorist speech, disinformation and misinformation, offence, emotional distress, and defamation of public officials and figures.

All those subjects will be familiar to British readers, who might note how courts in the US can be more robust when it comes to matters such as defamation (for example, the ‘superinjunctions’ popular in England and Wales earlier this century would not have impressed US judges). On the other hand, the US appears just as susceptible to dubious claims of ‘offence’. One of Strossen’s examples is The Vagina Monologues. Critics of the play have included not just the usual suspects of moral conservatives who disdained talk of sex, or feminists who felt it objectified women, but a different group who offered the alternative argument that talking about vaginas excluded anyone who did not have one.

Strossen shows how the US courts will often frame something as ‘not speech’ or as ‘speech’ depending upon whether they wish to ban or permit it. They are forced to use such intellectual contortions because of the absolutist wording of the First Amendment. This states without qualification that ‘Congress shall make no law abridging freedom of speech or the press’.

Such US-centric arguments will inevitably be of less interest to non-US readers, but the book still contains several universally relevant discussions. And if many of the general arguments are familiar, experience shows they will have to be made repeatedly, as each generation produces its own would-be authoritarians. Books such as this will therefore have to keep being written, and this one should be welcomed accordingly.

James Wilson is an independent legal author. His most recent book is Lord Denning: Life, Law and Legacy