The framers of our the United States Constitution have often been romanticized as some of the wisest men to ever walk the earth. Criticizing the ones who shaped the United States is tantamount to treason. Similarly, the US Constitution is held up as an faultless document—the gold standard of how to run a nation. Within that, the Bill of Rights holds a particular reverence, shaping the very ideas of inalienable rights for Americans. Most important of these rights is the freedom of speech, guaranteed by the First Amendment. “Congress shall make no law … abridging the freedom of speech,” it reads. Simple and straightforward, the right to free expression is guaranteed.

Consider in recent years that there have been limits imposed on free speech. In the case of Miller v. California, the Supreme Court deemed that obscenities were not considered protected speech. Obscenity, according to the Miller test, is anything that an average person, “applying contemporary community standards,” would find offensive or objectionable. Similarly, speech is not considered protected if it constitutes a reckless or intentional infliction of emotional distress, though the Supreme Court has only extended this to speech against private figures (Hustler v. Falwell prevented it from covering public figures). In Virginia v. Black, it was ruled that speech intended to intimidate, such as cross-burning, is not Constitutionally protected.

The common ground that these rulings stand on is the idea that contemporary community standards define the speech that we do not consider free, as such speech can cause real-world harm. As humans, it is our responsibility to minimize harm wherever possible, and speech is no exception to this rule. Speech can be used to destroy lives, to dehumanize people groups, and to influence others to cause harm. We acknowledge the dangers that certain forms of speech have. Therefore, it is only reasonable that speech that glorifies or otherwise supports standards that are not welcome in our contemporary community should be prohibited.

Unrestricted free speech is not a right, it is a threat. It allows for the spread of ideas that can cause a clear and present danger to others, whether it be individuals or entire groups of people. The Supreme Court has acknowledged as much by restricting speech that seeks to intimidate, “fighting words,” and obscenity. It is important that we recognize that it is not the words that deserve restriction, but the ideas behind them. Our contemporary community has already deemed forms of bigotry such as racism and sexism as unacceptable, and those who exhibit such ideas are rightfully ostracized. However, the ideas remain, and the concept of free expression is to blame for it. Groups such as the Ku Klux Klan, Neo-Nazis, Mens Rights Activists, the Westboro Baptist Church, among others, are given the right to demonstrate, so long as they are “peaceful.” Consider though, that the ideas that these groups espouse have been used in the past to disparage others, and to justify oppression and even murder. It stands to reason that the expression of such ideas, because of the harm they have led to in the past, should neither be considered peaceful, nor should they be remotely protected under any rule of law. Again, because we recognize and accept that these ideas are objectionable in our contemporary community, they should not be expressed, both because of their destructive capabilities and because their expression contributes to their survival. By continuing to say things like “protecting free speech means protecting unpopular ideas,” we allow the spread of bigotry, hatred, and the violence that goes hand-in-hand with them. And by that, we are implicit in the crimes associated with them.

There is a common misconception with the idea of free expression as an absolute right. We must acknowledge that freedom of speech is nothing more than a legal right, and as such, can be subjected to limits. In fact, there is no country in which freedom of speech is an absolute right, being subjected to limitations based on obscenity and incitement to commit crimes. Concordantly, we must recognize that limits must be placed on rights such as the freedom of expression when social values conflict. Some would argue that the government should not exercise such powers, since it would be considered a form of unethical control or outright tyranny. This stands in contrast to the harm principle, coined by John Stuart Mill, author of On Liberty. The harm principle states that, “The only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.”

As previously detailed, the unrestricted right to free speech will ultimately give safe harbor to harmful ideas, which ultimately lead to harmful actions. Because these exercises of free speech can be linked to physical violence, psychological trauma, and social harm, it is necessary to modify the harm principle into the offense principle, which is as follows: “The purpose for which limitations can rightfully be exercised over the free expression of ideas in a civilized community, against the will of the speaker, is to prevent harm, where the expression of ideas cause more harm than the exercising of such freedom of expression.” Because the easiest way to judge whether or not an idea is harmful is through offensiveness, that is, that it would be considered objectionable to a reasonable person applying contemporary community standards, the nature of the offense principle is necessary to decide what limitations should be placed on speech in order to prevent harm.

Some would challenge that the idea of setting limits on free speech is effectively censorship, and the only way that offensive speech should be countered is with more speech, through the rationale of the marketplace of ideas (the concept that free speech should be treated as free-market capitalism, where inferior or negative ideas and speech will be culled through competition with other ideas and speech). Censorship is widely seen as a negative concept, because of its use to suppress criticism of certain ideas, yet there are forms of censorship that we are perfectly fine with, such as censoring material to protect children, or to prevent slander and libel, or to control obscenity, as has been discussed. Censorship can be used for the sake of good, and the idea that censorship, being “objectively evil,” is always a threat to free speech and individual liberty, is often used to defend harmful ideas and expressions. The thought that these objectionable ideas can only be defeated with “more speech” is also preposterous. To eliminate harmful ideas from our culture permanently, the root cause of the problem (the expression of those ideas) must be eliminated. In this way, we can treat the problem, rather than its symptoms. Yes, if we are to prevent harm, we must advocate for censorship.

We, as a society, have a collective obligation to protect one another from harm. Human security should be considered a basic human right, but is not, because of persistent imbalances of social power. These imbalances give certain societal advantages to specific demographics, called “privileges.” You may have heard of the concepts of white privilege or male privilege, for example. These are in reference to the advantages that people of the white race have over others in Western society, and the similar advantages that men have over women, respectively.

What does this have to do with preventing harm and free speech? Everything, to be fair. Free speech inherently favors the privileged. The people with the most disadvantages are often silenced and spoken over, ultimately devaluing their ideas. Concordantly, ideas that disparage the disprivileged are still allowed, and are defended under the concept of free speech. The imbalance of power through speech is obvious. To defend free speech is to defend oppression.

Many free speech advocates in the United States refer to the Constitution, and how the right to expression without government limitation was the First Amendment to the document, denoting the importance of the free exchange of ideas. Consider that the Constitution is not a faultless document. The Eighteenth Amendment was ratified, and later repealed with the Twenty-first Amendment, showing that we are capable of both recognizing the mistakes that we make in lawmaking, as well as proving that we can repeal constitutional amendments. If we are capable of acknowledging that the current ideals of free speech granted by the First Amendment are both too broad and afford too much power to the privileged class, it stands to reason that we would be capable of repealing the Free Speech Clause and replacing it with a more appropriate substitute that will better prevent harmful ideas from manifesting.

This task will be difficult because of the sacrosanct nature of both the Constitution as a document and its Framers. This idealized version of the Founding Fathers ignores the faults that these men possessed. Most notably, their prejudices towards people of color and women. The Constitution’s idea of “We the People of the United States” only recognizes white men who own property. It does not acknowledge those people of African origin, relegating them to “three fifths of all other Persons” in Article 1, Section 2, Clause 3. It does not acknowledge those people of native American origins, as evidenced in the conquering of native territories to establish the what would become the United States. It does not recognize women, nor anyone who does not own property, as these people could not vote, hold political office, or enter into contacts of any sort. We may like to idealize the Constitution and our Founding Fathers as champions of freedom and equity under the law, but the ugly truth is that the United States was founded by the privileged for the privileged, and, as it is our duty as a society to prevent harm, so it is our obligation to tear down the structures that allow harm to be perpetuated.

While this is only a solution for the problem of free speech in the United States, it would not be impossible for other nations to follow suit, or to enact their own censorship policies on their own merit, because this is not an issue that is limited to the United States. Because we now live in a globalized culture, we must acknowledge that our contemporary society must transcend national borders, so that we may establish equality for all humans, worldwide. The elimination of unsafe, undesirable thinking is a necessary step to establishing true justice in our time.