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Events, news & press, free speech.

While many Americans take free speech for granted, the tradition is far from universal. Many developed nations restrict speech that is deemed hurtful or offensive. And in the United States, there is increasing sentiment that some speech is not worth protecting. Is it time to reconsider the nation’s free-speech orthodoxy?

Nearly everyone has experiences that contradict the children’s rhyme “sticks and stones may break my bones, but words will never hurt me.” Words can be painful. And that is particularly true in the age of social media, when a viral tweet or insensitive post can hurt feelings and damage reputations.

Despite this reality, the United States maintains a strong legal and cultural tradition of free speech. While many Americans take it for granted, the tradition is far from universal. Many developed nations restrict speech that is deemed hurtful or offensive. And in the United States, there is increasing sentiment that some speech is not worth protecting.

Is it time to reconsider the nation’s free-speech orthodoxy?

Part 1: What is freedom of speech?

The First Amendment of the Constitution says:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

At its core, the Constitution’s robust protections for speech are intended to preserve and protect liberty. Hoover Institution senior fellow Peter Berkowitz  highlights  how the First Amendment connects freedom of speech with liberty:

Its position in the text of the First Amendment symbolizes free speech’s indissoluble connection to religious and political liberty. One can neither worship (or decline to worship) God in accordance with one’s conscience, nor persuade and be persuaded by fellow citizens, if government dictates orthodox opinions and punishes the departure from them. Indeed, the more authorities—whether formally through the exercise of government power, or informally through social intolerance—prescribe a single correct view and demonize others, the more citizens lose the ability to form responsible judgments and defend the many other freedoms that undergird human dignity and self-government.

Freedom of speech protects your right to say things that are disagreeable. It gives you—and everyone else—the right to criticize government policies and actions.

Part 2: What isn’t protected?

It sounds straightforward, “Congress shall make no law . . . abridging the freedom of speech,” but the First Amendment isn’t absolute. Hoover Institution senior fellow Richard Epstein  offers a framework  for how to think about free speech and its limits:

The First Amendment clearly covers the spoken word, written pamphlets, and books. By analogy, it also reaches other expressive activities like drawing, dancing, and acting. But no one could claim that it also protects mayhem, murder, defamation, and deceit. The only way to draw the right line—that between expression and violence—is to recognize that the First Amendment is as much about  freedom  as it is about speech. The necessary theory of freedom applies equally to all forms of speech and action, and it draws the line at the threat or use of force, even if the former counts as speech and the latter does not.

As the video below explains, the general principle of the nation’s free-speech rules is that your speech is protected so long as it doesn’t harm others.

But this raises the question: what should count as a harm? In our legal system there are well-defined examples where speech is not protected, because it hurts someone. You can’t lie about someone to harm their reputation. That’s called defamation. You can’t misrepresent the truth to people for your own gains. That’s fraud. And the First Amendment doesn’t permit you to advocate for the immediate use of force against someone else.

But there are other times when speech is protected even when someone may claim to be harmed. Mean or hateful words that may be true or a matter of opinion are generally protected by the First Amendment, even if they offend someone. You may think that is wrong. And there are plenty of countries that agree with you. Many countries have enacted strong hate-speech laws that prohibit derogatory remarks about a person’s race or religion. Peter Berkowitz  summarizes  new restrictive speech laws recently enacted by other nations:

In 2017, Germany enacted a law that obliges social media networks to be more “diligent in policing ‘hate speech’ on their platforms.” The next year, France adopted a similar law. A substantial plurality of British voters in 2018 believed that people do not feel free to express their opinions on “important issues.”

But there is a danger to these rules. As the video below highlights, enacting laws that ban offensive speech mean that “the people who disagree with you the  most  would have the most control over what you’re allowed to say.”

In an interview with Tunku Varadarajan , Richard Epstein explains the consequences of laws that ban offensive speech: “Everybody offends everybody a large fraction of the time. So, if I am insulting to you because you’re a progressive and you’re insulting to me because I’m a conservative, and if we allow both people to sue, then neither can talk.” The end result is that debate and free expression are stifled.

Part 3:  What about private restrictions on speech?

The First Amendment constrains the federal government from infringing on most speech, and the Fourteenth Amendment extended these constraints to state and local governments. But the First Amendment’s protections don’t apply to the personal and private interactions of people or businesses. If people disagree with you, they are free to stop listening. And companies are generally free to stop doing business with people with whom they disagree. Nor is anyone obligated to provide a forum for anyone else’s speech. Richard Epstein  explains:

Freedom of speech means that you have the right to use your own resources to advance your own causes. But it doesn’t give you, in the name of free speech, the right to take somebody’s telephone, somebody’s house, or somebody’s anything in order to use it for your own purposes.

But while private actors are not bound by the First Amendment, many private institutions have thrived because they have embraced a culture of free speech. For example, private universities have historically maintained broad academic freedoms for its faculty and students that allow for robust dissent on campuses. Recently, however, some universities have adopted policies that take a narrower view of what is acceptable speech.  Here’s Peter Berkowitz :

At universities, America’s founding promise of individual freedom and equality under law is often treated as irredeemably tainted by racism and sexism, colonialism and imperialism. In some cases, free speech is placed on the list of “incorrect phrases” that ought not be uttered, because it belongs among the “impure thoughts” of which minds must be cleansed.

Berkowitz notes, “Ninety percent of American universities censor speech or maintain policies that could authorize administrators to engage in censorship.” These rules are well intentioned. They are intended to promote a safe and welcoming environment for students and faculty. But a rejection of free speech has significant costs.

Part 4:  What are the benefits of free speech?

Without protections for speech—particularly for disagreeable speech—our liberties are more easily threatened. But free speech is important even beyond its value to our liberty. The free exchange of ideas—even ones that are disagreeable—is key to future prosperity. Hoover Institution research fellow Ayaan Hirsi Ali  explains  why:

Societies since the Enlightenment have progressed because of their willingness to question sacred cows, to foster critical thinking and rational debate. Societies that blindly respect old hierarchies and established ways of thinking, that privilege traditional norms and cower from giving offense, have not produced the same intellectual dynamism as Western civilization. Innovation and progress happened precisely in those places where perceived “offense” and “hurt feelings” were not regarded as sufficient to stifle critical thinking.

Diversity of thought isn’t just a matter of freedom; it is also an important ingredient to progress. When society discourages dissent or governments dictate the bounds of acceptable opinions, there is less innovation, and incorrect yet popular ideas go unchallenged. Economist Milton Friedman explains how diversity and freedom of all types are integral to a thriving society in this video:

Part 5: How do we preserve freedom of speech?

Preserving our liberties and ensuring a vibrant, innovative society requires free speech. Well-intentioned efforts to protect people from speech that offends is thus a threat to our free and prosperous society. What steps can we take to ensure free speech remains a cherished value for future generations?

Hoover Institution research fellow David Davenport  makes a case  for reprioritizing civic education in US schools. Testing reveals that a shrinking number of students are knowledgeable about US history. Increased funding and improved curriculum for civic education will ensure that future generations understand and appreciate the nation’s tradition of free speech.

Higher education also has a role to play. Public universities are generally bound by the First Amendment, but all universities—public and private—should remember the value academic freedom brings to campuses and to all of society. As Richard Epstein  argues :

The First Amendment prohibition does not allow one person to commandeer the property of another for his own purposes. But in terms of their roles in society, there is a critical difference between a university and a private business: Universities have as their central mission the discovery and promotion of knowledge across all different areas of human life.

Part 6:  Conclusion

All too often, support for free speech depends on who is talking and what is being said. Partisanship too frequently shapes our view of just how expansive the First Amendment should be. But we should remember how the nation’s strong tradition of free speech has helped protect the freedoms of all Americans. It has empowered citizens to speak against and undo unjust laws. And it has helped create a vibrant, diverse economy with widespread prosperity.

Does this mean there is nothing we can do about speech we find disagreeable or offensive? Certainly not. As  the video above explains : “The way to respond to offensive speech isn’t to use force—it’s to counter with persuasive speech of your own.”

Citations and Further Reading

In his essay  Rewriting the First Amendment ,  Richard Epstein explains the dangers of a proposed constitutional amendment to restrict spending for political speech.

In  an interview on  Uncommon Knowledge ,  Ayaan Hirsi Ali emphasizes the importance of free speech in addressing the nation’s racial inequalities.

To view the original article, click here .

View the discussion thread.

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If We Want Free Speech, We Need to Teach It

Many students lack clarity about free speech principles, Louis E. Newman writes.

By  Louis E. Newman

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It has been, by every measure, a challenging year for free speech on college campuses.

Widespread student protests, legislative efforts to control what is taught and how, and a growing movement to suppress diversity, equity and inclusion programs have created a crisis not seen since the Vietnam War and civil rights protests more than half a century ago. In the process, university leaders have been caught in the crossfire between faculty, students, alumni, parents, donors, trustees, advocacy organizations and members of Congress.

While fundamental commitments to free speech and academic freedom remain strong within our institutions, students and faculty alike are increasingly unclear about what is protected, and at what cost. When does protected political speech cross the line into unprotected threatening or intimidating speech? How should private institutions, not subject to First Amendment restrictions, make these distinctions? Can faculty include controversial materials in their courses when some students say it makes them feel unsafe? How do we respond to students demanding that we cancel speakers whose views they regard as abhorrent, but who are outraged when their own right to speak or demonstrate is challenged?

These questions about the scope of free speech are not new, but the context in which we now confront them is unprecedented. We live in a time of intense political polarization and the pervasive—and increasingly pernicious—influence of social media, when some academic discourses are themselves politically controversial, and when society at large is suspicious of higher education. Students entering and returning to college this fall will be thrown into this maelstrom. We have not prepared them well.

If these past months have taught us anything, it is that we need greater clarity than ever before on what types of speech and protest are permitted, which are disallowed, and why, as well as greater transparency about how our institutions deal with the many boundary cases that inevitably arise. Addressing these challenges will require administrators to take a concerted, multifaceted approach.

Every student should receive a booklet when they arrive on campus outlining basic principles of free speech and campus protest. It should explain why free speech is the bedrock of academic inquiry and include clear examples of the sorts of speech that are protected (even when they are offensive), the types of behavior that are not tolerated and the kinds of sanctions that can be imposed when the rules are violated. It must also acknowledge that in many cases no bright line can be drawn and explain how such cases will be adjudicated.

The need for such explicit guidance was underscored by the results of a recent student survey from the Foundation for Individual Rights and Expression, according to which 45 percent of students indicated that blocking other students from attending a speech is acceptable to some degree, and 27 percent said that using violence to stop a campus speech is acceptable to some degree. Students need to be disabused of these misguided views.

New student orientation should include programming on these issues, focused on cases that require careful discernment. One such example was offered recently by David Wippman, who just retired as president of Hamilton College: “If someone is chanting, ‘From the river to the sea’ at 4 p.m. on a Friday in the middle of a quad where protests are allowed, that’s protected speech. If they’re chanting it at 4 a.m. outside a Jewish student’s residence hall room, that’s harassment.”

Colleges should sponsor programs throughout the year in which issues of free speech are examined, featuring experts on First Amendment law, social protest movements and higher education policy. These programs should be open to faculty, students and staff.

Institutional leaders should communicate regularly, especially at high-profile public events, about the importance of listening to the viewpoints of those we disagree with, about the fact that academic work sometimes challenges our cherished beliefs and about the value of civil discourse, both on campus and in society. To protect the free speech of everyone in our communities, campus leaders will need to model it consistently and vigorously.

Universities should sponsor a series of facilitated conversations with leaders of student groups about how free speech principles apply to their activities, both internally and in relation to groups with conflicting views and agendas. Students should be challenged to interrogate what it means to ensure their safety, recognizing that there are significant differences between behaviors that make students uncomfortable, those that create a toxic learning environment and those that threaten someone’s physical safety.

Faculty members should receive clear and explicit guidance from the administration about political speech that is protected, both inside and outside class, and what is out of bounds. Recognizing again that many cases fall into a gray area where the administration will be required to make judgment calls, faculty should receive guidance about who is responsible for such judgments, and how faculty can appeal these decisions.

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In addition, regular faculty workshops should be offered on how to handle controversial issues that arise in class discussions. Faculty should be encouraged to add messages to their syllabi about principles of civil discourse, open dialogue and respectful communication, based on templates provided by university leadership, to ensure that these messages are aligned with campus policies and consistent across courses.

In short, if we want free speech, we’ll need to teach it—intentionally, consistently and forcefully—as if the education of our students and the well-being of our institutions depend on it. Because they do.

In addition to these educational strategies, we must establish institutional structures that address these issues. It is long past time for universities to establish standing committees composed of faculty, students and institutional leaders where policies on these matters are debated in an open, collaborative and transparent setting. Such committees should periodically produce reports about their deliberations and any recommendations they would make for adjustments to institutional policies.

Doing so would serve several purposes: fostering greater consensus on the value and limits of free speech, giving students a voice in policy-setting, and providing much-needed credibility and support to academic leaders when they take disciplinary action. Finally, such a process would help prepare students to address complex speech issues our society faces, such as whether and how to limit disinformation disseminated through social media and whether public libraries should remove materials that offend some people’s sensibilities.

This summer, university leaders have a window in which to rethink their approach to these issues. Doing so isn’t only about lowering the temperature on campus, urgent as that is. It is essential to reinforcing the values intrinsic to liberal education and reasserting the value of higher education to a skeptical public. This will require creative thinking, dedication, widespread buy-in and, of course, more resources.

Rising to the challenge of this moment will be costly in both time and resources, but so is failing to act decisively. Students and faculty alike must be helped to see how their own treasured rights to free speech are inextricably intertwined with the identical rights of those whose speech they find offensive, even abhorrent. And they must be taught that all such rights are accompanied by obligations that include, at a minimum, the responsibility to exercise those rights in ways that don’t undermine our educational mission or destroy the fabric of our society. The future of our institutions, and our democracy, depends on it.

Louis E. Newman is a former associate vice provost for undergraduate education at Stanford University and is the John M. and Elizabeth W. Musser Professor of Religious Studies, Emeritus, at Carleton College. He is the author most recently of Thinking Critically in College: The Essential Handbook for Student Success (Radius Book Group, 2023).

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Protecting Free Speech in the AI Era

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Jul 16, 2024, 9:55 AM

Artificial intelligence has captured the world’s attention as a possible beginning of a new world order, with science fiction–like outcomes ranging from utopia to a robot apocalypse. Hyperbolic predictions aside, AI has already impacted censorship and misinformation worldwide.   

On June 24 in Washington, D.C., The Future of Free Speech at Vanderbilt University and the Center for Democracy and Technology convened a symposium on Artificial Intelligence & The First Amendment: Protecting Free Speech in the AI Era to explore how federal and state policymakers grapple with regulating emerging AI technology while respecting The First Amendment. As policymakers worldwide rush to place guardrails on AI, experts from academia and civil society have expressed concerns that strict usage policies on AI platforms could erode free speech and access to information.        

This symposium brought together leading experts, industry representatives, and policymakers to delve into the complex relationship between AI and free speech. During the first session, which included congressional staff from the Senate Commerce Committee and House Judiciary Committee, panelists said that the First Amendment was top of mind for lawmakers as they craft legislation. The variety of panelists led to a rich exchange of ideas and explored the unintended consequences of well-intended regulation.   

“In less than two years, generative AI has rapidly evolved from a niche tool to a groundbreaking technology poised to revolutionize our world,” said Jacob Mchangama, the founder and executive director of The Future of Free Speech. “As techno-pessimism over new AI technologies focuses on potential harms, we need to continue having conversations like this symposium to understand how we can harness this innovation for good without sacrificing fundamental rights like free speech or user access to information.”  

Jason Vadnos, a freshman in the College of Arts and Science and member of the Dialogue Vanderbilt Student Advisory Board , attended the event while interning at Vanderbilt’s DC-based Office of Federal Relations . “This event introduced me to new opinions and perspectives about AI and free expression and enlightened me about the negative impacts of regulation—even regulation intended to support free speech,” Vadnos said. “It fostered critical reflection and helped inform my own nuanced view of AI, free speech and current legislation.”   

To further explore the implications of AI and free speech, join the conversation this Oct. 17–18, 2024,  when The Future of Free Speech and Vanderbilt University will host the inaugural Global Free Speech Summit . This event will discuss the most pressing challenges threatening freedom of expression worldwide and identify impactful solutions to reinvigorate this fundamental freedom.  

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Censoring Free Speech: Pros and Cons Research Paper

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Introduction

Why support freedom of speech, why censor free speech.

Freedom of speech is something that is practiced in many countries today. Most governments have their bills amended in support of freedom of speech. However, there are various developments in communication such that most nations are moving towards amending these bills again in support of censorship of free exercise of speech. Free speech refers to the right of an individual to express their opinions without any censorship from the government (Kevin, p31). Censorship of speech simply refers to the act of suppressing the freedom of free speech. Freedom of speech has been very affected today and in whichever way we look at it, no country exclusively practices free speech (Henry, p8). This is because some individuals will take advantage of free speech and they will deliver speeches such as hate speech, incitement speeches, or speeches that do not have any supporting facts. For this reason, the government must move to protect its citizens from such speeches. This paper intends to analyses censorship of free speech and why or why not it should be supported.

Expression of truth

Free speech should not be censored since it allows individuals to freely express their views and ideas concerning different subjects. Through such expression it allows the society to be very informed about the happenings that are unfolding within the society. This is especially important when it comes to the government. Society is not always aware of what happens behind the curtains of the government. Through free speech, we can discover the truth. With censorship, such truth and information may never get to the public.

Self-governance

A state that lacks freedom of speech lacks self-governance. Having self-governance means being able to make decisions based on the information that you have. With free speech, the individuals in the society are always informed and they can make very informed decisions (Alan, p61). This is especially important during the time of elections when then society is electing its leaders. Through the freedom of speech, society can influence the policies that the government is undertaking. People are more enlightened about what they want and they can campaign for it. Without free speech, society will be afraid of expressing themselves and this means that the government will never respond to their grievances.

Free speech is an avenue of attaining democracy within a country. This can be traced to the days of Martin Luther King who was an eloquent leader and made very powerful speeches in a bid to attaining democracy. Martin’s speeches influenced a lot of people and he was able to compel the government to honor the civil rights of the people (Kevin, p39). If a government censors free speech it will be an avenue to dictatorship and authoritarian regimes. This again was observed during Hitler’s era who after using free speech to gain power retrieved and denied the freedom of speech to individuals. He only supported free speech on those agendas that were of interest to him. He knew the strength of the power of speech in attaining democracy and this would have been a threat to his dictatorial regime. Lack of free speech undermines the people’s human rights.

Accountability

The presence of free speech within a country will determine the quality of governance in that country (Alan, p75). Through free speech, individuals can criticize the performance of the government and also public officials. With such criticisms being allowed, the performance of the government is improved. The government and other people serving the public can be accountable for their actions. With censorship, the government easily escapes accountability by silencing its critics.

Social Interaction

Free speech allows individuals to improve their communication skills within society. Through free speech, they can establish new relationships within the society and also maintain the already established relationships. People can participate in the development of the nation and also the society through sharing of ideas and knowledge.

Conflict of values and rights

Freedom of speech cannot be supported if it interferes with the values and the rights of the individuals within the society (Arthur, p63). For example, some individuals take advantage of the freedom of speech to spread bad morals such as pornographic materials and other unacceptable morals such as lesbianism and homosexuality. The government should censorship such motives of freedom of speech since this amounts to the spread of bad morals. The freedom of speech especially on the internet has been censured by the government to protect society from such information especially to the children and also teenagers who might engage in irresponsible behaviors upon exposure to such kind of information (Sunstein, p36). In other instances, it results in defamation of individuals within the society which is not acceptable. In such cases, the government should be supported in the censorship of free speech.

National security

Censoring of free speech is practiced by the government as a matter of protecting the public from insecurities that may be spread by individuals to the public (Erik, p16). Politicians are especially the ones who are greatly involved in this kind of censorship. If a politician is involved in giving hate speeches or speeches that incite people to go into war or commit crimes, they should be banned from exercising their freedom of speech. This is because such leaders may incite the society to get involved in crime if the motives they want to be achieved in the government are not accomplished according to their wishes. This may bring a lot of instability to the government and this is a major threat to the national security of a country.

Therefore censorship of freedom of speech should not always be viewed as a bad motive in the government. Sometimes it is done to protect the citizens of the country. This ensures public safety and thus people can confidently live in a safe environment (Arthur, p71). This can be traced to the days of Hitler. Hitler and his Nazi power rose to power due to their freedom of the press but this eventually led to the death of millions of people due to his dictatorship. If there had been censorship of the free press during that period, many lives would have been saved since his hate speeches would not have had such great influence on society.

Political propagandas

Free speech is just a platform used by politicians to spread their propaganda to society. The opposition to the government especially takes advantage of the situation to spread negative motives of the government which might lead to a lack of confidence in the government (Sunstein, p42). Through control of free speech, the government can defend its position to the people by avoiding the spread of such propaganda. Some politicians also use free speech to spread evil motives especially racial negativity (Arthur, p77). This might divide the people of one nation through cheap propaganda of favoritism towards some races. The government uses censorship to protect the citizens from being fed with such information. On the other hand, politicians only use free speech for their benefits for climbing the power ladder by creating and making promises to the public which will never be achieved. In this case, free speech encourages individuals to spread information that lacks facts and support. Whether it comes to fulfillment or not is not their problem as long as they achieved what they wanted from the public. The government should in such cases censor the spread of information that lacks facts since it adds no value to society (Erik, p25).

In conclusion, Censorship of free speech is of great disadvantage to society than benefits. It denies individuals the right to freely express and share ideas that are essential in the development of a nation. Free speech allows people to listen to a different view of individuals and make very informed decisions. With censorship, it amounts to selecting what people will talk and listen to. This amounts to manipulation of their decisions and thus dictatorship and lack of democracy. However, censorship is not evil in all circumstances. It serves an important role in maintaining national security and preserving the social values and morals of the society (Henry, p17).

Alan Haworth. Free speech. Routledge, 1998, 54-78.

Arthur James Anderson. Problems in intellectual freedom and censorship. R. R. Bowker Co. 2001, p62-93.

Erik Ringmar. Free Speech and Censorship in the Age of the Internet. Anthem Press, 2007, p14-28.

Henry Reichman. Censorship and the freedom of speech. ALA Editions, 2001, p8-17.

Hoffman, Frank. Intellectual Freedom and Censorship. The Scarecrow Press, 1989, p27-49.

Kevin C. O’Rourke. John Stuart Mill and Freedom of Expression: The Genesis of a Theory. Routledge, 2001, p31-57.

Sava. The Suppressed Serbian Voice and the Free Press in America. Sage publications, P23-43.

Sunstein, Cass. Democracy and the problem of free speech. McGraw Hill, 1995, p34-46.

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IvyPanda. (2021, November 1). Censoring Free Speech: Pros and Cons. https://ivypanda.com/essays/censoring-free-speech-pros-and-cons/

"Censoring Free Speech: Pros and Cons." IvyPanda , 1 Nov. 2021, ivypanda.com/essays/censoring-free-speech-pros-and-cons/.

IvyPanda . (2021) 'Censoring Free Speech: Pros and Cons'. 1 November.

IvyPanda . 2021. "Censoring Free Speech: Pros and Cons." November 1, 2021. https://ivypanda.com/essays/censoring-free-speech-pros-and-cons/.

1. IvyPanda . "Censoring Free Speech: Pros and Cons." November 1, 2021. https://ivypanda.com/essays/censoring-free-speech-pros-and-cons/.

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IvyPanda . "Censoring Free Speech: Pros and Cons." November 1, 2021. https://ivypanda.com/essays/censoring-free-speech-pros-and-cons/.

Free Speech Challenges to Trademark Law After Matal v. Tam

Houston Law Review, Vol. 56, No. 401, 2018

San Diego Legal Studies Paper No. 18-374

71 Pages Posted: 16 Jan 2019 Last revised: 26 Jan 2019

Lisa P. Ramsey

University of San Diego School of Law

Date Written: December 17, 2018

Trademark laws and free speech are on a collision course. In Matal v. Tam, the U.S. Supreme Court clarified that trademark laws are speech regulations subject to First Amendment scrutiny when it held that the federal trademark law denying registration to potentially disparaging marks was unconstitutional. Tam opens the door to wide-ranging free speech challenges to trademark laws in the United States. Most trademark laws should survive constitutional scrutiny after Tam, including laws that facilitate the communication of source-identifying product information, promote fair competition, and protect consumers from misleading uses of marks. Some laws will not. For example, if courts apply the U.S. Supreme Court’s traditional First Amendment jurisprudence to trademark dilution law, they should find this statute to be an unconstitutional regulation of non-misleading commercial expression. We should also consider whether the First Amendment right to freedom of expression is harmed when the government registers and protects trademark rights in certain language and product features that intrinsically communicated a non-source-identifying message before they were adopted or used as marks. Examples include words and designs that are descriptive, common, informational, or culturally-significant, and colors, representational shapes, and other pre-existing terms, symbols, or devices that were inherently valuable before they were claimed as marks. Regardless of whether these marks are deemed to be non-functional and distinctive after use in the marketplace, granting and enforcing trademark rights in this inherently valuable expression chills non-misleading speech protected by the First Amendment and may be unconstitutional after Tam. At a minimum, Congress should clarify in the trademark statute that these marks only have a narrow scope of protection and it should add more statutory defenses.

Keywords: Trademark, Free Speech, Freedom of Expression, First Amendment, Constitutional Law, Matal v. Tam

JEL Classification: K00, K33, O34

Suggested Citation: Suggested Citation

Lisa P. Ramsey (Contact Author)

University of san diego school of law ( email ).

5998 Alcala Park San Diego, CA 92110-2492 United States

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Many adults in East and Southeast Asia support free speech, are open to societal change

In Hong Kong, Japan, South Korea and Taiwan, large majorities of adults say that people who disagree with their government’s actions should be able to publicly criticize the government, according to a 2023 Pew Research Center survey . For instance, 83% in both South Korea and Taiwan say this.

Pew Research Center conducted this analysis to explore how adults across Asia view government criticism and free speech.

Data comes from two Pew Research Center projects. Data for Hong Kong, Japan, South Korea, Taiwan and Vietnam comes from a Center survey of 10,390 adults conducted from June to September 2023. Data for Cambodia, Indonesia, Malaysia, Singapore, Sri Lanka and Thailand comes from a Center survey of 13,122 adults conducted from June to September 2022.

Interviews were conducted over the phone in six places: Hong Kong, Japan, Malaysia, Singapore, South Korea and Taiwan. In Cambodia, Indonesia, Sri Lanka, Thailand and Vietnam, interviews took place face-to-face.

These surveys are part of the  Pew-Templeton Global Religious Futures project , which analyzes religious change and its impact on societies around the world.

Respondents were selected using a probability-based sample design. Data was weighted to account for different probabilities of selection and to align with demographic benchmarks for the adult populations.

For more information, read the 2023 survey’s full list of questions and responses, the 2022 survey’s full list of questions and responses , and our survey methodology .

And in Hong Kong – where recent laws have curtailed free speech and dissent – 81% of adults say people should be able to criticize the government in public.

Adults in these East Asian places are generally more supportive of critical speech than those in the South and Southeast Asian societies we surveyed in 2022 . Those societies included Indonesia, Malaysia, Singapore, Sri Lanka and Thailand. Like in East Asia, some of these places have legal restrictions on free speech.

Still, majorities in South and Southeast Asia say that people should be able to publicly criticize the government, including three-quarters of Indonesians. In Singapore, where freedom of expression and freedom of the press are limited, 55% say this.

(Cambodia and Vietnam were also included in these surveys, but we did not ask this question in those places.)

Free speech or social harmony?

While most adults in the places surveyed support the right to publicly criticize the government, there is no consensus on how free speech should intersect with social harmony.

We asked whether people should be allowed to publicly speak their opinions, even if they upset other people, or whether harmony with others is more important than the right to speak one’s opinion.

Clear majorities in several places, including Cambodia (69%) and Indonesia (67%), say harmony is more important than the right to speak your opinion. However, a majority of Thai adults (59%) hold the opposite view.

Adults in Hong Kong and Taiwan are fairly evenly split on this question.

Differences by age and education

In most of the surveyed places, adults ages 18 to 34 and those with more education are more likely than their counterparts to support the right to criticize the government. They are also more likely to support speaking freely, even at the expense of social harmony.

For instance, in South Korea, 92% of adults under 35 say people should be free to criticize the government, compared with 80% of those ages 35 and older. And 91% of South Koreans with a postsecondary degree support this, compared with 76% of adults with less education.

Should societies be open to change?

Throughout East Asia and neighboring Vietnam, many people think their society will be better off in the future if it is open to change, as opposed to sticking to its traditions and way of life. In these places, aging populations are raising questions about the future . (We did not ask this question in South and Southeast Asia in 2022.)

Most South Korean (78%) and Japanese (67%) adults say their societies will be better off if they are open to changes. In Taiwan and Vietnam, 53% agree.

People in Hong Kong are evenly split: 49% say Hong Kong will be better off sticking to its traditions, and the same share say it should be open to change. Across the surveyed places, adults ages 18 to 34 are more likely than those ages 35 and older to support changing traditions. In Vietnam, for example, 61% of younger adults say this, compared with 48% of older adults.

Respondents with more education are also generally more likely than those with less education to say the future will be better if their society is open to change.

Note: For more information, read the 2023 survey’s full list of questions and responses, the 2022 survey’s full list of questions and responses , and our survey methodology .

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Manolo Corichi is a research analyst focusing on religion research at Pew Research Center .

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Most americans say a free press is highly important to society, ­most americans favor restrictions on false information, violent content online, freedom of speech and lgbt rights: americans’ views of issues in supreme court case, most u.s. journalists are concerned about press freedoms, most popular.

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