It's typically bad essay form to start a section with a dictionary definition, but since I want to contrast my definition with the conventional dictionary definition, it's hard to start with anything else. Free speech is defined by dictionary.com as
- free speech
- The right to express any opinion in public without censorship or restraint by the government.
This definition misses some critical aspects of our common usage of the term. For instance, free speech is of no value if nobody is allowed to listen to the speech; people in solitary confinement have perfectly free speech, but that does not mean that we would have considered it an acceptable solution to lock up Martin Luther King Jr. in solitary confinement and let him preach what he may; along with the obvious unjust imprisionment we would consider this to be an obvious example of trampling on free speech. We should also consider the right to free speech as the right to listen to anybody we choose (subject to possible exceptions later), thus
- free speech
- The right to express any opinion in public without censorship or restraint by the government, and the corresponding right to experience anybody's expressions in public without censorship or restraint by government.
I use "experience" here as a general verb: One listens to a speech, watches a movie, reads a book or webpage, etc.
Since I don't want to define free speech in terms of censorship, lets remove that and put in its place what people are really afraid of.
- free speech
- The right to express any opinion in public, and the corresponding right to experience anybody's expressions in public, without being pressured, denied access, arrested, or otherwise punished by the government.
This definition really only applies to people in a government-controlled territory, like a public park. If one looks around at all of the various ways of expressing ourselves, we find that the government does not own very many of them. In common usage of the term "free speech", we expect "free speech" to allow us to say that a corporation "sucks", express our opinions about pop music stars, and review movies, without the non-governmental entities we are talking about, or that own the means of expression, being able to suppress our speech merely because they don't like it.
Considering both the target of the speech and the publisher of the speech is necessary. Suppose I use an Earthlink-hosted web page to criticise a Sony-released movie. If Earthlink can suppress my speech for any reason they please (on the theory that they own the server and the bandwidth), and have no legal or ethical motivation to not suppress the speech, then in theory, all Sony would have to do is convince Earthlink it is in their best interest to remove my site. The easiest way to do that is simply cut Earthlink a check exceeding the value to Earthlink of continuing to host my page, which is a trivial amount of money to Sony. In the absence of any other considerations, most people would consider this a violation of my right to "free speech", even though there may be nothing actually illegal in this scenario. So if we allow the owner of the means of expression to shut down our speech for any reason they see fit, it's only a short economic step to allow the target of the expression to have undue influence, especially an age where the gap between one person's resources and one corporation's resources continues to widen.
Hence the legal concept of a common carrier, both obligated to carry speech regardless of content and legally protected from the content of that speech. The "safe harbor" provisions in the DMCA, which further clarified this in the case of online message transmission systems, is actually a good part of the DMCA often overlooked by people who read too much Slashdot and think all of the DMCA is bad. The temptation to hold companies like Earthlink responsible for the content of their customers arises periodically, but it's important to resist this, because there's almost no way to not abuse the corresponding power to edit their customer's content.
I also change "opinion" to expression, to better fit the context of this definition, and let's call this "the right to free speech":
- the right to free speech
- The right to express any expression in public, and the corresponding right to experience anybody's expressions in public, without being pressured, denied access, arrested, or otherwise punished by anyone.
There are standard exceptions to free speech, for instance "libel", "slander", "threats", and "community standards." In my opinion, these are not deeply affected by the Internet era, with the exception of what the definition of a "community" is. I want to leave that for later. Thus, my final definition is
- the right to free speech
- The right to express any expression in public, and the corresponding right to experience anybody's expressions in public, without being pressured, denied access, arrested, or otherwise punished by anyone, subject to somewhat fuzzy, but fairly well-understood exceptions.
It should be easily seen that this accurately reflects what we've known as free speech into the Internet domain (and indeed any other domain with equal ease). We can express, subject to the usual limitations, anything we want on a web page, in an e-mail, or with an instant message, and we are free to receive those expression. Unlike people behind restrictive national firewalls in countries such as China where there is no guarantee of free speech, we are largely allowed to access anything we wish.
Though it's not directly related to the definition of free speech, I'd like to add that we expect people to fund their expressions of free speech themselves, and the complementary expectation that nobody is obligated to fund speech they disagree with. For instance, we don't expect people to host comments that are critical about them on their own site.
By far the most important thing that this definition captures that the conventional definitions do not is the symmetry required of true free speech. Free speech is not merely defined in terms of the speakers, but also the listeners.