Freedom From Speech

• Date: 01 July 2022

FREEDOM OF SPEECH, POWER, AND

DEMOCRACY

Freedom From Speech

MARY ANNE FRANKS*

ABSTRACT

The importance of freedom of speech in a democratic society is usually taken

as a given, but freedom from speech is no less important in safeguarding the

values of truth, autonomy, and democracy. Freedom from speech includes both

the right of the individual to not be forced to speak and the freedom to avoid

the speech of others. This essay attempts to highlight the significance of freedom

from speech in order to clarify the importance of the First Amendment right

against compelled speech; provide an explanation for when the right of free

speech yields to other rights; and offer a framework for evaluating unsettled or

contentious questions about free speech doctrine and practice.

The importance of freedom of speech in a democratic society is usually taken

as a given. This essay explores the less intuitive insight that freedom from speech

is also extremely valuable in advancing democratic goals. “Freedom from

speech” as used in this essay roughly parallels the freedom from religion pro-

tected by the Establishment Clause of the First Amendment, which prohibits the

government from coercing or imposing religious beliefs on its subjects.

“Freedom from speech” includes both the right of the individual to not be forced

to speak and the freedom to avoid the speech of others. The former, the Supreme

Court has made clear, is protected by the First Amendment. The latter, however,

often conflicts with existing First Amendment protections. But the right to free-

dom from speech in both senses is as essential as freedom of speech to the

advancement of truth, autonomy, and democracy. This essay highlights the sig-

nificance of freedom from speech by bringing together disparate examples of this

value in action, with the purpose of clarifying the importance of the First

Amendment right against compelled speech; providing an explanation for when

the right of free speech yields to other rights; and offering a framework for evalu-

ating unsettled or contentious questions about free speech doctrine and practice.

* Professor of Law and Michael R. Klein Distinguished Scholar Chair, University of Miami School

of Law, and President and Legislative and Tech Policy Director, Cyber Civil Rights Initiative. © 2022,

Mary Anne Franks.

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