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More than 3 million people have fled Ukraine in the weeks since the start of Russias invasion. Europe hasnt seen an exodus of this scale and speed since World War II. Equally unprecedented is the welcoming attitude that countries neighboring Ukraine have had toward these refugees.

Race, culture, and religion certainly play a role in the warm welcome fleeing Ukrainians have received. But recent history is another factor. Though Ukraine isnt part of the European Union, the ease with which Ukrainians have been able to work and travel to EU countries have made them fixtures in the bloc, and that perhaps even more than geography has contributed to a sense that they are Europeans currently in need of aid from other Europeans.

In the weeks since the start of the invasion, all of Ukraines borders except those with Russia and Belarus have remained open. Most refugees used one of the 31 border checkpoints in western Ukraine and entered Poland, Slovakia, Hungary, Romania, and Moldova. Poland took the majority, close to 2 million as of March 18.

The governments of these nations and non-governmental groups quickly worked out emergency plans to help those fleeing the Russian invasion. The EU announced on March 4 that Ukrainian citizens (who, pre-war, didnt need a visa to stay up to 90 days in the EU territory) would be entitled to the newly enacted temporary protection directive permitting them to live, work, and study in EU member states for up to three years.

The exact implementation may differ from country to country, and some plans may still shift. For the five neighboring countries that opened borders to let Ukrainians in, all except Moldova are EU members.

Non-Ukrainians, however, didnt get the same rights or legal protection. In the first few days of Russias invasion, there were incidents in which Ukrainian citizens were allowed to cross the border while non-Ukrainians faced obstacles to doing so. Now, at least on paper, people can cross the border regardless of nationality. Poland issues a 15-day temporary permit, Romania a 90-day transit visa, and Hungary a 30-day residence permit to non-Ukrainians. Officials expect them to go back to their home countries before those permits expire, or apply for asylum if they wish to stay longer.

The disparity between how Ukrainian and non-Ukrainian refugees are being treated is stark. It brings to the fore longstanding debates about what makes someone European, and who is worthy of Europes protection. Its also key to understanding why Ukrainians have been met with open arms by the rest of Europe.

European countries havent seen such a large number of displaced people in this short period of time in recent history. It took three weeks for 3 million to leave Ukraine. While at least a couple hundred thousand Ukrainians have returned home, thats still an overwhelmingly fast flow of people. When 3 million Syrians fled their country due to the war, it took two years to reach that milestone, and an even longer time for Syrian refugees to reach Europe.

To put the size of the population fleeing Ukraine into perspective, nearly 6 million people applied for asylum in European Union countries from 2013 to 2021. About 2.5 million sought asylum during 2015 and 2016.

Syrian refugees saw a very different reception than the Ukrainians currently fleeing Russias assault have one thats more reminiscent of the welcome non-Ukrainians have received, and consistent with the experiences other refugees of color have faced when trying to reach Europe. Hungarian Prime Minister Viktor Orbn called arriving migrants fleeing the Syrian war a Muslim invasion in 2015 and built border walls to fence them off. Last October, Poland entered a state of emergency when thousands of refugees from Afghanistan and Iraq attempted to cross the border from Belarus into the European Union.

Polls across the EU reflect a deep wariness about certain immigrants. Generally, European countries are less welcoming to immigrants of races and ethnicities that differ from their predominantly white populations. And people in eastern European countries, including Slovakia, Hungary, and Poland, are less likely to think immigrants should be allowed in than their western counterparts, according to the latest European Social Survey, conducted across the bloc in 2018.

A push to repatriate refugees has led to efforts like Denmark working to send its Syrian refugees from Damascus back home. Across Europe, far-right parties have expanded their power, both in individual nations and the EU parliament, partially on an anti-immigration platform.

The different treatment toward Ukrainian refugees is rooted in a sense that, although Ukraine isnt in the EU, its citizens are European. People from European countries see themselves in the Ukrainian refugees fleeing the war. That has been clear from their public statements, including those tinged with racist and xenophobic ideas about what it means to be European.

These people are Europeans, Bulgarian Prime Minister Kiril Petkov said. These people are intelligent. They are educated people. ... This is not the refugee wave we have been used to, people we were not sure about their identity, people with unclear pasts, who could have been even terrorists.

While refugees from Middle Eastern, African, or Asian countries are seen as others, the geographic proximity, similar skin colors and religions, as well as the social-economic ties to the EU states all contribute to the identification of Ukrainians as us Europeans.

An increasingly unified European identity has formed among the eastern European countries that joined the EU in the 2000s. Most citizens of Poland, Hungary, Slovakia, and Romania see themselves as citizens of the European Union.

While Ukrainians arent EU citizens, they have enjoyed visa-free travel in the EU member states since 2017. By 2020, they were the third-largest group of non-EU citizens living in the bloc, behind citizens of Morocco and Turkey.

Before the war, most Ukrainians in the EU came for work. More than half of Ukrainian migrants residing in the EU got their residence permits through work. In 2020, 86 percent of the Ukrainians who applied for residence permits for the first time received their permits for employment-related reasons, the highest among all other nationals.

Ultimately, Ukrainians want their country to join the EU. Four days into the war, Ukraines President Volodymyr Zelenskyy submitted an application for EU membership, an act then mirrored by former Soviet states Moldova and Georgia. The EU application and linkage processes take a long time, and western members of the bloc have rebuffed Ukraines request to fast-track its approval. But after years of roadblocks, the path is open for them to take.

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How to understand the Ukrainian refugee crisis, in charts and a map - Vox.com

As a result of Russias ongoing military intervention in Ukraine, the Swiss Federal Council has implemented a complete revision of the Ordinance on Measures connected with the Situation in Ukraine, thereby adopting further packages of European Union sanctions against Russia. These new measures entered into force at 6 pm on 4 March.In doing so, Switzerlands measures will align with those imposed by the EU. Going forwards, the Federal Council will autonomously decide to adopt further EU sanctions measures against Russia depending on any new developments.

Dual use items and technology

The export of dual-use goods is now prohibited, regardless of the end-user and the intended end-use. The new sanctions measures remove the military use or end-user qualifier, and instead impose a blanket prohibition on the supply of dual-use items to any Russian person or for use in Russia.There is also a prohibition on providing technical assistance, brokering and other services related to dual-use items, and on providing related financing or financial assistance.

Military goods

Furthermore, it is prohibited to export to Russia or Ukraine specific military goods listed in Annex 3 of the Swiss Goods Controls Ordinance that could contribute to the military and technological strengthening of Russia or to the development of the defense and security sector. The provision of services of any kind, including financial services, brokering, technical advice, and the granting of financial means the Russian Federation or Ukraine or intended for use in these countries is also prohibited.

Energy

Switzerland has introduced prohibitions on supplies of items suited for use in oil refining.There are also restrictions on associated services, financing and financial assistance. The list of restricted items is contained in a new Annex 4 which restricts the items based on their customs tariff code. All of the restricted items are contained within Chapters 84 and 85 of the Swiss customs tariff.

SECO may authorise certain derogations insofar as this is urgently necessary to prevent or mitigate an event that could have serious and significant effects on human health and safety or on the environment. In addition, in urgent and duly justified cases, the sale, delivery, export or transit of Annex 4 goods may take place without prior authorisation, provided SECO is informed within five working days of the sale, delivery, export, transit or transport and explains the reasons for these activities.

Switzerland has brought in prohibitions on the provision of drilling, well testing, logging and completion, supplying floating units in Russia, including in its exclusive economic zone and on its continental shelf, in connection with oil exploration and extraction in waters deeper than 150 m, in the area north of the Arctic Circle, or in connection with projects related to the production of oil from resources located in shale formations by hydraulic fracturing.

Aviation and space sector

Switzerland has prohibited the export of all items listed in Chapter 88 of the customs tariff to Russian persons or for use in Russia (listed in a new Annex 3).This includes aircraft, spacecraft, and parts thereof.Consequently, it is now prohibited to export aircraft, spare parts and equipment to Russian airlines and to the Russian space sector. Standard prohibitions on associated services also apply. In addition, the following activities are also prohibited in relation to the items: overhaul, repair, inspection, replacement, modification or defect rectification of an aircraft or component.

Financial sector restrictions

Other EU financial sanctions have also been adopted, affecting in particular the SWIFT messaging system for financial transactions. It is now prohibited to provide specialized financial messaging services used to exchange financial data, to banks, enterprises or entities referred to in Annex 14 (i.e. Promsvyazbank, Sovcombank, VTB Bank, Vnesheconombank, Bank Otkritie, Bank Rossiya, Novikombank) or to any bank, enterprise or entity located in the Russian Federation and more than 50% controlled by banks, enterprises or entities referred to in Annex 14.

Under the new measures, there are restrictions on dealings involving transferable securities and money-market instruments (previously financial instruments), in particular assisting in the issuance, trading, or provision of investment services of securities and money market instruments issued after April 12, 2022 by entities including four Russian banks (Alfa Bank, Bank Otkritie, Bank Rossiya and Promsvyazbank the latter two having been also fully designated earlier in the week), and eight Russian state-owned companies (Almaz-Antey, Kamaz, Novorossiysk Commercial Sea Port, Rostec, Russian Railways, JSC PO Sevmash, Sovcomflot, and United Shipbuilding Corporation).

Moreover, it is prohibited to provide public financing or financial assistance for trade with or investment in the Russian Federation. The prohibition does not apply to funding or financial assistance commitments entered into before March 5, 2022, the provision of public financing or financial assistance up to a total amount of CHF 10,000,000 per project to small and medium-sized enterprises in Switzerland, the provision of public financing or financial assistance for the food trade and for agricultural, medical or humanitarian purposes.

Banks are prohibited from accepting deposits from Russian nationals or natural persons residing in Russia, or from banks, companies or entities established in Russia if the total value exceeds CHF 100,000. Banks must provide SECO by June 3, 2022, with a list of deposits exceeding CHF 100,000 held by Russian nationals or natural persons residing in the Russian Federation, or by banks, companies or entities established in the Russian Federation. Updates on deposit amounts must subsequently be provided every 12 months.

Additionally, transactions with the Russian Central Bank are no longer permitted and there is a prohibition on selling or exporting banknotes denominated in Swiss Francs or Euros to or within the Russian Federation or to any person or entity in Russia including the Government and the Central Bank of the Russian Federation, or for use in that country

Designated party listings

The Federal Council has decided to extend the designated party listings by adding the individuals on the list of persons adopted by the EU on 28 February to Annex 8 of the Ordinance and thereby freeze the assets of further persons with close ties to Russian President Vladimir Putin. Particularly noteworthy are the inclusions of Igor Sechin (CEO of Rosneft), Nikolay Tokarev (CEO of Transneft), Gennady Timchenko (founder of Volga Group), Alisher Usmanov (one of Russias businessmen officials with close ties to President Putin), Mikhail Fridman and Petr Aven (all shareholders of Alfa Group), Vitaly Savelyev (Minister of Transport), and Olga Skabeyeva (the host of Russias most popular political talk-show).

In light of further EU sanctions already announced, we expect further alignment by Switzerland more timely after new EU sanctions have been formally adopted. The same holds true for any new EU sanctions against Belarus where Switzerland has already aligned itself before.

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Switzerland adopts further comprehensive sanctions packages imposed by the European Union against Russia - GlobalComplianceNews

The Supreme Court has struck down laws that have restricted offensive speech, such as the wearing of swastikas in Village of Skokie v. National Socialist Party of America. But in Virginia v. Black, the Supreme Court declined to rule that cross-burning was protected expressive speech under the First Amendment when such an activity was intended to intimidate, reasoning that sometimes it can constitute a "true threat." (Photo of Ku Klux Klansmen and women at a cross lighting in 2005 via Wikimedia Commons, CC BY-SA 3.0)

The term hate speech is generally agreed to mean abusive language specifically attacking a person or persons because of their race, color, religion, ethnic group, gender, or sexual orientation. Although the First Amendment still protects much hate speech, there has been substantial debate on the subject in the past two decades among lawmakers, jurists, and legal scholars.

The scholarly debate concerning the regulation of hate speech flared in the late 1980s, primarily focusing on campus speech codes, pitting those who view regulation of hate speech as a necessary step toward social equality against those who see hate speech regulations as abridgements of the fundamental right of free speech.

The traditional liberal position is that speech must be valued as one of the most important elements of a democratic society. Traditional scholars see speech as a fundamental tool for self-realization and social growth and believe that the remedy for troublesome speech is more speech, not more government regulation of speech. For example, liberal theorist Nadine Strossen, relying to some degree on John Stuart Mills connection between speech and the search for truth, argues that restricting hate speech will mask hatred among groups rather than dissipate it.

Proponents of hate speech regulation usually do so from the perspective of critical race theory, believing that legal decisions are based on preserving the interests of the powerful, and see no value in protecting bias-motivated speech against certain already oppressed groups. They question the necessity and logic of protecting speech that not only has no social value but is also socially and psychologically damaging to minority groups. These proponents of the regulation of hate speech suggest a new balance between free speech and social equality.

For example, Mari Matsuda, a law professor at Georgetown University, has advocated creating a legal doctrine defining proscribable hate speech from a basis in cases where the message is one of racial inferiority, the message is directed against a historically oppressed group, and the message tends to persecute or is otherwise hateful and degrading.

The Illinois Supreme Court reviewed the question of restricting a Nazi rally in Village of Skokie v. National Socialist Party of America (1978). The court, relying heavily on a U.S. Supreme Court case, Cohen v. California (1971), raised the slippery slope argument, contending that restricting the wearing of a swastika would lead to an endless number ofrestrictions on all sorts of offensive speech. Adhering to the content neutrality principle, the court ruled that the government could not base rules on the feelings of the most squeamish among us and that the wearing of swastikas was a matter of taste and style.

In R.A.V. v. St. Paul (1992) the Supreme Court appeared to close the door on hate speech regulations. The case involved a city ordinance in St. Paul, Minnesota, prohibiting bias-motivated disorderly conduct against others on the basis of race, color, creed, religion, or gender. The Court struck down the ordinance, finding it to be unconstitutional on its face because it was viewpoint discriminatory.

The Court reviewed whether hate speech as defined in the ordinance fit into the fighting words category. This category, first established in Chaplinsky v. New Hampshire (1942), was defined as such words, as ordinary men know, are likely to cause a fight. The Court in R.A.V. found that the ordinance had removed specific hateful speech from the category of fighting words because, by specifying the exact types of speech to be prohibited, the restriction was no longer content neutral.

More than a decade later, the Supreme Court again ruled on a hate speech case. Virginia v. Black (2003) concerned the constitutionality of a Virginia statute that made it unlawful to burn a cross with the intent of intimidating any person or group of persons. Many scholars have argued that the Courts opinion in Black is completely opposite from its ruling in R.A.V.

Relying on the history of the use of cross burnings to intimidate African Americans, the plurality found that R.A.V. did not mean the First Amendment prohibits all forms of content-based discrimination within a proscribable area of speech. The Court did accept the idea that some individuals might burn crosses for reasons other than intimidation.

Current case law and research concerning hate speech has shifted focus toward hate speech on the Internet. The Internet brings with it a myriad of new problems for the First Amendment, including how to determine what level of scrutiny to apply and how to react to existing restrictions on hate speech by much of the international community.

This article was originally published in 2009 and updated in 2017. Chris Demaske is an associate professor of communication at the University of Washington Tacoma. Her research explores issues of power associated with free speech and free press and has covered topics including hate speech, academic freedom, and Internet pornography.

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Hate Speech | The First Amendment Encyclopedia

As we wrap up Sunshine Week, an annual recognition of the importance of open government, I cannot help but reflect on our imperfect union and that the free flow of fact-based news continues to hit roadblocks in this age of misdirection and disinformation. Fake news, if you will.

But whatever obstacles we encounter in the United States serve as warnings to what we could face if they are left unchecked. U.S. press operations have pulled out of Russia after journalists covering the invasion of Ukraine were threatened, leaving only government-regulated propaganda.

The former American Society of News Editors (now the News Leaders Association) launched Sunshine Week in 2005 as a national initiative to promote a dialogue about the importance of open government and freedom of information. The week-long celebration is held every March to coincide with the March 16 birthday of James Madison, the father of the U.S. Constitution and a key advocate of the Bill of Rights.

The First Amendment provides us with great protection from government interference for what we say and write, particularly on political issues or matters of public interest. We should remember that the nations founders created those protections to allow for what the U.S. Supreme Court has called robust and vigorous debate. In 2002, Justice Anthony Kennedy wrote, The right to think is the beginning of freedom, and speech must be protected from the government because speech is the beginning of thought.

These days, as we witness what it means to be silenced and without recourse, we should think about those wordsand why the founders and the nation ratified the First Amendments five freedoms during a period of great division and debate not unlike that of today. Unfettered flow of information and access to government is for each of us, not just members of the press, which led to a timely discussion this week on that very topic.

Last October, Indiana Attorney General Todd Rokita banned Abdul-Hakim Shabazz from covering his press conferences, saying he wasnt an actual journalist. The ACLU in February filed a lawsuit claiming Rokitas office violated Shabazzs First Amendment rights. Rokita later denied Shabazzs open-records request asking for an explanation from Rokita as to why he was banned. Just this month, Rokita filed a motion to dismiss the lawsuit.

Shabazz is editor and publisher of IndyPolitics.org, a well-established digital news source for politics in Indiana. He was joined in a panel discussion at Ball State University this week by The Indianapolis Stars Statehouse reporter, Kaitlin Lange, as well as Steve Key, executive director and general counsel of the Hoosier State Press Association, and Amelia Dieter McClure, HSPAs incoming executive director. The event, sponsored by the College of Communication, Information and Media, featured the question: Who is a journalist and why it matters.

Our rights, including the right to free speech, dont exist if theyre not defended. And defending basic freedomseven when a group besides our own is in the crosshairsbenefits everyone by making sure the protections of our basic rights remain strong.

__________

Metzger is an associate lecturer at the School of Journalism and Strategic Communication, and former president and publisher of The Star Press and executive editor for digital at The Indianapolis Star.

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Juli Metzger: First Amendment is about more than journalism - Indianapolis Business Journal

In May 2021, I published a list of Answers to 12 Bad Anti-Free Speech Arguments with our friends over at Areo. The great Nadine Strossen former president of the ACLU from 1991 to 2008, and one of the foremost experts on freedom of speech alive today saw the series and offered to provide her own answers to some important misconceptions about freedom of speech. My answers, when applicable, appear with hers. Because the remaining arguments well be addressing are more nuanced, weve decided to drop the word bad from the title going forward.

Earlier in the series:

Assertion: Free speech rests on the false premise that the marketplace of ideas will lead to truth.

Greg Lukianoff: A very similar argument recently came up in a First Amendment News contribution by Emerson Sykes, a free speech lawyer at the ACLU who does very important First Amendment work. Sykes wrote:

I would be remiss if I didnt take this opportunity to point out a few old arguments for free speech that I think have outlasted their utility that the cure for bad speech is more speech, and the related metaphor of the marketplace of ideas. While counter-speech is undoubtedly powerful in many instances, inherent in both of these arguments is the idea that unfettered speech will eventually and inevitably lead to truth and justice. If we just let every idea run its course, the thinking goes, the good ones will win in the end.

But there is nothing inevitable about truth or justice. And all speech is not equal. Just as the marketplace of goods is full of distortions and structural power imbalances, it is not at all obvious that the marketplace of ideas requires a laisse-faire approach. The question is not whether good speech always wins in the end (a quick perusal of Twitter will indicate that it emphatically does not), the question is what rights do we all have to our ideas and communications, and who gets the power to decide what is true, what is acceptable speech, and what is not.

With much respect to Sykes, whom I admire, I believe this is a strawman. I have not seen any serious free speech advocate arguing unfettered speech will eventually and inevitably lead to truth and justice. Free speech is not all that you need to find the truth but surely truth stands zero chance if no one can utter it. Freedom of speech is necessary but not sufficient to the discovery of truth.

Simply, you cannot understand the world as it is if you dont know what people think and why.

Now, a brief but important digression on how truth is defined in free speech classics like Miltons 1644 Areopagitica and Mills 1859 On Liberty, and how these conceptions of truth relate to the terms usage today: In older treatises on freedom of speech, as well as in some more recent writings, truth is used not to refer to a single objective reality, but to an iterative ongoing process. To paraphrase Jefferson, truth can mean not error or even simply better arguments. It refers to an approach toward a better approximation of reality, not an arrival at complete understanding. This, unfortunately, needs to be clarified, because one of the attacks on freedom of speech is premised on a static and absolute definition of truth. Of course, due to human bias, objective truth is not perfectly knowable: Therefore, the argument goes, free speech is of no value in attaining truth. But once you reject the false binary at the heart of the often fruitless debate about whether or not objective truth exists, and instead focus on the fact that open discussions where all opinions are aired are more likely than restricted discussions to lead away from error and toward better arguments and ideas, the value of free speech becomes self-evident.

Now onto the marketplace of ideas metaphor: Like Sykes, I have been highly critical of the marketplace of ideas metaphor, and believe it is incomplete. In my piece, Coronavirus and the failure of the Marketplace of Ideas, I address several shortcomings with the marketplace of ideas metaphor, namely that the concept doesnt provide much space for the importance of artistic freedom (as art doesnt neatly fit into good, bad, true, or false boxes), and does not explain how certain bad ideas like the flat Earth theory seem to have immortal staying power, even in the face of overwhelming evidence. I instead proposed the lab in the looking glass metaphor in short, that the primary value of free speech is that it gives you the chance to understand the world as it really is. The shift in emphasis may seem subtle, but its important. Too often, we focus on evaluating whether or not an individuals factual assertions are true, yet miss a really important truth the fact of the existence of that individuals perspective. Simply, you cannot understand the world as it is if you dont know what people think and why. Not only is this true on a civic and democratic level, but also on a historical, psychological, and scientific level. Free speech is essential because it is always important to know what people really think and why, especially if their views are potentially pernicious.

So because the marketplace of ideas concept is flawed and incomplete, should we abandon it? No, because the metaphor does vividly convey one of the important justifications for free speech: Good and bad ideas do collide when debate is unrestricted, and illustrate what I call Mills Trident in short, the observation made by John Stuart Mill in On Liberty that, in any argument, there are only three possibilities (being wrong, being partially wrong, or being wholly correct), and every possibility is improved or strengthened by freedom of speech and inquiry.

The marketplace analogy makes Mills Trident quite easy to understand. If the marketplace is free, bad ideas can be tested against good ideas, and good ones can be sharpened by collision with bad ones. If a good idea is restricted, the corresponding bad idea will never be tested, and people will lose reason to reject it. Moreover, even if only bad ideas are restricted, our understanding of the good ideas will be weakened.

One important note on the marketplace of ideas is that it is a very appropriate metaphor and model for higher education, the context in which I have spent most of my career. Indeed, scholarship at its best is supposed to be a process of arguing, testing, researching, re-arguing, retesting all to via subtraction (a.k.a. via negativa) eliminate a larger and larger number of false assertions. While in everyday life among many people matters of preference and emotional state may be primary topics of discussion, the project of higher education is to help us understand what ideas may be false by aiming toward a better approximation of the truth, even if we never arrive there.

We still need people who are both free and willing to speak the truth.

Both my lab in the looking glass metaphor and the proper understanding of the marketplace of ideas metaphor directly imply that, again, free speech is necessary, but not sufficient to find truth. By the logic of both metaphors and in real life we still need people who are both free and willing to speak the truth.

Lastly, as for the contention that the cure for bad speech is more speech has outlived its utility, its hard to imagine what could adequately replace more speech as a remedy. Historically, most cures for speech have involved violence, the coercive power of the state, or the illiberal will of the mob or of conformist institutions, from witch burnings to the more-than-550 scholars on campuses throughout the country who have been targeted for punishment just since 2015. Silence is one way to respond to bad speech as it is a means of exercising ones right not to speak. However, silence allows bad ideas to spread without being challenged. So, while free speech may not always cure bad speech, more speech is still the best available option for addressing it.

Nadine Strossen: This argument has two major flaws. First, the truth-seeking rationale never has depended on the clearly meritless view that good ideas will necessarily dominate, and bad ideas will necessarily evaporate. Rather, that rationale has depended on the demonstrably valid view that we can better approach this ideal result through a vigorous exchange of ideas among members of the public rather than any top-down control. Second, even assuming, hypothetically, that the truth-seeking rationale were unpersuasive, robust free speech protection would still be warranted on the basis of one or more of the additional, independently sufficient rationales that underpin it.

The truth-seeking rationale rightly constitutes one important justification albeit only one among several for our modern speech-protective standards. Although this rationale dates back to much earlier free speech philosophers, it was first encapsulated in the memorable marketplace metaphor in a landmark 1919 dissent by U.S. Supreme Court Justice Oliver Wendell Holmes. That metaphor and, more importantly, the truth-seeking rationale it summarized have since been embedded in countless Supreme Court majority opinions. Holmes himself never used the precise shorthand phrase that is routinely invoked to purportedly paraphrase his analysis: the marketplace of ideas. Rather, consistent with his skeptical philosophical outlook, Holmes hypothesized that the free exchange of ideas might be a better alternative than persecution for the expression of opinions, explaining (emphasis added):

[W]hen men have realized that time has upset many fighting faiths, they may come to believe. . . that the ultimate good desired is better reached by free trade in ideas that the best test of truth is the power of the thought to get itself accepted in the competition of the market.

As the italicized words indicate, Holmes argument was far from an outright prediction that free speech would inevitably lead to truth. Rather, he explained, the theory of our Constitution is that free speech is better suited for truth-seeking than censorship, but he acknowledged that this approach is an experiment, as all life is an experiment, as it is necessarily based upon imperfect knowledge. Nonetheless, he concluded that [w]hile that experiment is part of our system, . . . we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country. In short, a rigorous search for truth demands that all ideas must be subject to debate and discussion through robust free speech including that very concept itself.

Arigorous search for truth demands that all ideas must be subject to debate and discussion through robust free speech including that very concept itself.

Evidence accumulated through our ongoing First Amendment experiment continues to reaffirm that free speech is a less imperfect vehicle for pursuing truth than is the censorial alternative. For example, shortly before I wrote this piece, scientific evidence came to light supporting a previously discredited theory that COVID had originated from a leak in a laboratory in Wuhan, China. Government officials and experts had condemned this theory as fake news and even hate speech since the pandemics outbreak in early 2020, and it had been suppressed in major traditional and social media outlets. Yet, in the spring of 2021 the theory was rehabilitated as at least warranting serious consideration. Despite the exclusion of this theory from key segments of the marketplace of ideas, that overall marketplace was still functioning. Had that not been the case, we would have been denied critically important ongoing examinations, with their potentially enormous impact on public health and national security.

In 1984, Professor Melville Nimmer well captured the core skeptical, relativistic notion underlying the truth-seeking rationale for free speech. Quoting Holmes marketplace metaphor, he asked, If acceptance of an idea in the competition of the market is not the best test of its truth, what is the alternative? Logically, as he concluded, the answer could only be acceptance of an idea by some individual or group narrower than that of the public at large. Are We the People, who wield sovereign power in our democratic republic, willing to entrust any individual or subgroup with the incalculable power of determining which ideas are fit for our consumption and discussion? Are we willing to entrust that power to any government official or body?

In addition to the persuasive truth-seeking rationale for strongly protecting free speech, there are multiple other important rationales, each of which provides an independent justification for such protection. These include the essential roles of free speech in democratic self-governance, facilitating individual autonomy, promoting tolerance, and furthering all other human rights. For these reasons, freedom of speech has been strongly protected not only in the U.S. Constitution, but also in its counterparts in countries around the world, as well as in major international and regional human rights treaties.

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Does free speech 'inevitably' lead towards truth? Is the 'Marketplace of Ideas' a broken metaphor? Part 13 of answers to arguments against free speech...