Safeguarding Democracy: Free Speech as a Human and Civil Right

The views expressed below are those of the author and do not necessarily reflect those of the Carr-Ryan Center for Human Rights or Harvard Kennedy School. These perspectives have been presented to encourage debate on important public policy challenges.

Surely, political debate about what America should be, and which kind of economic system it should have, must count among the most basic themes in democratic discourse.

The Moment

There has been a striking amount of rhetoric in recent times about how certain exercises of free speech and acts of political organizing are said to have led to political violence—and therefore that some forms of speaking freely and political organizing ought to be addressed by various means, from tax law to criminal prosecution.

What is especially alarming is that talk of "anti-American" and "anti-Capitalist" views has become so prominent. Surely, political debate about what America should be, and which kind of economic system it should have, must count among the most basic themes in democratic discourse. Preserving our ability to discuss these topics is vital for democracy’s future in this country. It is also vital for human rights to have a future in this country.

So, this seems like an appropriate moment to reflect on the importance of freedom of speech as both a civil right and a human right—in other words, a right that we hold as citizens of a country and as human beings. Once we focus on why this right is so important, it becomes possible to better understand the connection between free speech and acts of political violence. And it also becomes possible to understand how there can also be excesses in the exercise of freedom of speech.

A Bit of American Legal History—and a Reminder of Joseph Welch’s Famous Exclamation, “Have You No Decency?”

The First Amendment plays a crucial role in American political culture, enabling citizens to express their views on nearly any subject without fearing government interference.
You can stand on Harvard Square and announce the nastiest set of opinions—and, unless your speech is an immediate incitement to violence, there is nothing the government can legally do about it.

However, it is important to remember that the First Amendment only protects you from governmental interference. Your employer is often free to dismiss you for your speech (with some exceptions of notable grounds on which that is not legal). As employees, Americans are much less protected in their speech than as citizens. This is a basic feature of life in the United States in 2025.

When it comes to governmental responsibility, free speech issues didn’t reach the Supreme Court until 1919. Then, in Schenck v. U.S., the Court upheld the conviction of a Socialist Party member for mailing anti-war leaflets to draft-age men. A few months later, however, in Abrams v. U.S., dissenting opinions from Justices Oliver Wendell Holmes and Louis Brandeis argued that speech could only be punished if it presented "a clear and present danger" of imminent harm. Mere political advocacy, they argued, was protected. That view prevailed and became the foundation that continues to shape American First Amendment law today.

From then on, the right to freedom of expression grew more secure—until the 1950s and McCarthyism. During that time, when Wisconsin Senator Joseph R. McCarthy went after numerous Americans for alleged Communist activities, the Supreme Court also fell prey to the witch-hunt mentality of the day. The "clear and present danger" test was weakened. Speakers could be punished for simply advocating to overthrow the government and thus based on allegations to that effect—even if the actual danger was slight and remote.

Many were prosecuted and jailed simply for, actually or allegedly, advocating for communism, even though the political prospects of American communism were indeed slight and remote.

The McCarthy era famously ended on June 9, 1954. On that day, Boston lawyer Joseph Welch—retained by the Army to parry McCarthy’s allegations—was accused by McCarthy of employing an attorney with alleged Communist ties. Welch answered with the famous words that ended McCarthy’s rise: “Until this moment, Senator, I think I never really gauged your cruelty or your recklessness.” When McCarthy continued his attacks, Welch cut him off: “Let us not assassinate this lad further, senator. You have done enough. Have you no sense of decency?”

Overnight, McCarthy’s immense national popularity evaporated.

The pendulum swung back, and over the coming decades, America drew lasting lessons from the McCarthy era. We now look back at that period as a dark time in American history. It is also worth remembering that Joseph McCarthy, while powerful, was a single senator without the backing of the entire government.

In 1969, in Brandenburg v. Ohio, the Supreme Court struck down the conviction of a Ku Klux Klan member and returned to the spirit of earlier free speech protections. The Court ruled that speech can only be suppressed if it is intended, and likely, to produce “imminent lawless action.” Otherwise, even speech advocating violence is protected.

The Brandenburg standard prevails today as an essential component of American democracy. It assures citizens that the government will not threaten them for speaking their minds The standard remains the legal test for whether speech advocating illegal action is protected under the First Amendment.

American common sense has long held that the McCarthy era revealed the dangers of allowing powerful figures to interfere with free speech.

Reflecting on the Rationale for the Brandenburg Standard—and on the Connection between Speech and Violence

One way to understand the Brandenburg standard is that speech itself does not harm people; it is actions following speech that can.

When words are spoken, listeners can evaluate them and are usually exposed to other perspectives. Or in any event, they can choose to be so exposed. If someone later becomes violent in response to speech, the responsibility lies with the person who took action, not with the speaker. The only exception is when the speech creates such an immediate and powerful impact that there is no time for reflection or for other speech to intervene. In that case, the speaker is held accountable.

American law thus makes an important distinction: speaking is not the same as acting—except in certain specific and urgent circumstances.

Other countries approach speech differently. The continental European legal tradition, for example, treats speech more like other acts. In Germany, Holocaust denial is illegal. In the United States, it is not, according to the Brandenburg standard. Even so, in both systems, the threshold for restricting speech is extremely high—democracy cannot function if people are afraid to speak or assemble.

“Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.” –Universal Declaration of Human Rights

Freedom of Speech as a Human Right

For the human rights movement, freedom of speech is also fundamental. Article 19 of the Universal Declaration of Human Rights states:

“Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”

There is a lot to unpack here, but let’s focus on the basic motivation for treating freedom of opinion and expression as a human right. The most elementary point is that the right to speak freely is foundational for developing one’s personality and living a fulfilled life. Thinking for oneself, speaking one’s mind, communicating, and conversing with others, assembling for political rallies are all essential for people to reach their potential. Protecting human dignity therefore means protecting speech.

A second reason that freedom of speech is essential is its role in advancing knowledge—for individuals to learn and for society to foster inquiry. John Stuart Mill’s On Liberty is often cited here. Mill argues that even erroneous views must be protected for intellectual progress. (Let us humor Mill here and go along with the assumption that views across the board can be erroneous or correct.)

Mill makes four points for this position. First, “erroneous” views provide contrasts, thereby clarifying “correct” views. Second, erroneous views might be true after all—we can never be absolutely certain. Third, the presence of errors forces us to justify better ideas. And fourth, no lasting harm results from allowing wrong views because, over time, good sense will prevail—more harm results from suppressing them.

A third important reason to protect speech as a human right is to guard against overreach by those in power. We should tend to overprotect speech because people must be well-informed and have access to all ideas to control their governments and destinies. We should tend to overprotect also because those in power will always be tempted to constrain speech. Generally, people easily get annoyed by criticism and those in power will often be tempted to use that very power to constrain speech.

Free Speech Excesses

Of course, freedom of speech must be protected as part of a broader bundle of democratic rights. Individuals with enormous wealth can literally buy newspapers, radio stations, or TV channels and can spend unlimited funds on political campaigns. Too much money in politics is one of the greatest problems in American politics just because it undermines any resemblance of a fair marketplace of ideas.

We must also remember that, as of 2025, the United States has a president who never ceases to claim the 2020 election was stolen, surrounding himself with loyalists who echo this view.  The courts have found no evidence for this view, and congressional inquiry has resoundingly rebutted it.

In a healthy democracy, other factors must also be promoted so that free speech strengthens, rather than undermines, democratic life. In other words, these other factors must be promoted so that free speech by some at the expense of free speech by others and to the detriment of other things that matter does not become the dominant factor in a democracy.

We need to distinguish between dissent and transgression: criticism of government and policy—even when it challenges national narratives—must be protected, regardless of whether it fits official preferences or economic orthodoxy.

Truth-telling politicians are essential, as are independent, fact-based journalism, civic education, and public deliberation. We need to distinguish between dissent and transgression: criticism of government and policy—even when it challenges national narratives—must be protected, regardless of whether it fits official preferences or economic orthodoxy. We should encourage, and demonstrate, leadership that prioritizes solving real-world problems like climate change. We also need institutional checks—accountability, transparency, and due process—to prevent selective enforcement of speech rules.

Living in a Flourishing Democracy

Freedom of speech is a crucial element of a flourishing democracy, but it must exist alongside other vital democratic practices.

The legacy of the McCarthy era is that powerful interference with free speech poisons democracy. And again, let us remember that McCarthy was merely a senator.

Many other historical experiences teach us what else is needed to ensure we can live in a vigorous democracy.

For us to live in a flourishing democracy takes a whole of courage by a whole lot of people.