Legitimate Restrictions

Abstract

Although the principle of freedom of expression is a moral absolute that imposes general duties which bind all systems of governance always and everywhere, it is consistent with various legal or governmental restrictions on modes of expression—provided that those restrictions are directed against the modes of expression not qua modes of expression but instead qua communication-independent misconduct. This chapter explores this aspect of the principle of freedom of expression by cataloguing various types of communicative conduct that can properly be subjected to legal restrictions. Among those types of communicative conduct are perjury, libel, solicitation to commit a crime, true threats, fighting words, incitement (in the sense of the term articulated by the U.S. Supreme court ruling in Brandenburg v Ohio), and fraud. All of these types of communicative conduct, along with several others, can be legally prohibited in accordance with the principle of freedom of expression.