The First Amendment's guarantee of free speech is worded as an absolute, there are no exceptions in the text.
However, no functioning society could allow unlimited free speech. There are many exceptions to the First Amendment – fraud, perjury, defamation, death threats, "shouting fire in a crowded theatre", speech in violation of privacy or duties of confidentiality, etc.
I don't think the original authors of the First Amendment meant it to be unlimited. They didn't intend it to legalise fraud or perjury or defamation.
But, given they didn't leave any guidance in the text as to which exceptions are valid and which are not, it is basically up to SCOTUS to decide. And which exceptions SCOTUS accepts as valid change as the moods of its majority changes – and will likely continue to change in the future.
The equivalent provision in the European Convention on Human Rights is Article 10, which says: "The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary".
I think that's better than the First Amendment in that it acknowledges in the text the reality that exceptions are necessary, and makes some attempt to outline what the exceptions are. However, there is still a lot of room for interpretation by the European Court of Human Rights as to the proper scope of all those exceptions, especially regarding what is "necessary in a democratic society" and what isn't. Few would claim the Court always gets it right. But, at least, the European Court of Human Rights is arguably a far less politicised institution that the US Supreme Court.
> Most (if not all) EU countries protect the freedom of speech in their constitution.
Not particularly well, as it seems when compared to the US.
You can just look at some of the laws that they have regarding speech, on their books, to see how there are definitely more things that are restricted that you can say, in comparison to what it restricted in the US.
You object to one of the specific exceptions in ECHR Article 10, not to the idea of making the exceptions explicit. The point I was defending was that the exceptions should be explicit, not that the particular list of exceptions in the ECHR is the right list
This would imply there are interpretations where it isn't allowed even in the cases of the worst most extreme content. Does any organization/group advocate such an interpretation? As far as I'm aware all groups either support an interpretation that allows the government to censor some speech or supports considering some speech as not counting as speech so it can be censored without censoring speech (using sophistry to hide censorship of speech).
There's nothing intrinsically superior to either SCOTUS or any group or organization's interpretation.
I'm pretty sure you are able to interpret it as not allowing even in the worst and most extreme cases, you just don't want to. There's no need for an argument from authority.
I'm not trying to claim any one group is authoritative. I'm saying that I'm not aware of any group, regardless of their level of authority, who uses an interpretation that includes the worst material. Everyone (that I'm aware of) makes an exception for at least one form of material, even the ACLU or similar organizations. Even the Libertarian party, one of the groups most in favor of limiting government, is not against censorship of the worst sort of material.
> This would imply there are interpretations where it isn't allowed even in the cases of the worst most extreme content.
That would be the interpretation where someone actually reads the text of the Constitution instead of making up exceptions out of whole cloth.
> Does any organization/group advocate such an interpretation?
Yes, obviously. The Libertarian Party is one example:
>> … we oppose all attempts by government to abridge the freedom of speech and press, as well as government censorship in any form …[1]
>> We support full freedom of expression and oppose government censorship, regulation, or control of communications media and technology.[1]
Direct threats of harm are still actionable, of course. In that situation you aren't punishing the speaker for what they said but rather defending yourself in response to a reasonable expectation of imminent and irreversible harm. The speech is merely evidence of intent.
The issue is what is classified as free speech? Perjury for example might not seem like a free speech issue, but under the most extreme versions it must be allowed.
As such it’s common for groups to carve out what the want limited as simply not qualifying as speech. Aka we can ban spam because we are banning the medium and not the message. This then gets into issues like should flag burning be allowed which blur the line between message and medium. Thus simply saying you support free speech is a rather meaningless statement. People need to look at the specifics on what each group considers speech etc.
> Perjury for example might not seem like a free speech issue, but under the most extreme versions it must be allowed.
If your perjury gets someone else punished when they shouldn't have been, you are an accessory to that unjust punishment. Conversely, if your perjury shields someone from just punishment then you are an accessory to the harm they caused their victim, and potentially future victims who would have otherwise been protected. Once again it is not the speech which is the problem but rather the actual harm which you helped to cause.
> This then gets into issues like should flag burning be allowed which blur the line between message and medium.
That isn't even a question of speech, just private property. If it's your flag then you should be able to burn it, for any reason or no reason. Banning flag-burning on the basis of the message the act is attempting to communicate would obviously infringe on the freedom of speech under even the narrowest of definitions. If you're burning someone else's flag then that can be punished as theft and destruction of others' property independent of any speech which may or may not have been intended. Freedom of speech is not a "get out of jail free" card. If in the course of making your speech you also take actions which harm others then you can be punished for those actions; the fact that they were accompanied by speech is no excuse.
> Thus simply saying you support free speech is a rather meaningless statement.
I kind of agree with you here. Freedom of speech only takes on concrete form when combined with consistent support for private property rights, in which case you get freedom of speech as a natural by-product. The question becomes not "Is this speech?" but rather "Does this action cause injury or otherwise infringe on anyone else's property rights?"—something that speech per se can never do.
> Once again it is not the speech which is the problem but rather the actual harm which you helped to cause.
Unfortunately that doesn’t work as outlawing harm from speech ends up outlawing political speech because someone doesn’t get elected. Similarly, advertising your product is detrimental to your competition.
Effectively you need to define what kinds of harm speech is allowed to produce. Anti Vaccination videos for example actually get people killed, and we accept that as a valid trade off in the US.
Again, it’s really tempting to define something as outside of free speech but selecting what is and isn’t allowed is kind of the point. So, you can’t simply punt this issue.
