What are the examples of when freedom of speech should be limited?

What it means that freedom of expression should be limited: definition and legal context

Key legal terms and distinctions

A working definition helps voters and readers move beyond slogans: freedom of expression should be limited when a restriction is provided by law, pursues a legitimate aim, and is necessary and proportionate to that aim.

This legal framing aligns with the international baseline that requires clear legal authorization and narrow scope when states restrict speech, rather than broad or vague controls, as reflected in primary treaty language and interpretive guidance ICCPR Article 19.

Why limits exist and who decides

States, courts, and independent human rights bodies typically make judgments about permissible limits, using statutory texts, constitutional rights, and international guidance to weigh expression against competing interests such as public order, national security, or the rights of others.

Different legal systems apply different tests and thresholds; case law refines how those tests operate in practice and prevents a single global standard from automatically applying everywhere UN Human Rights Committee’s General Comment No.34.

International standards: ICCPR, General Comment No.34, and how limits are defined

Article 19 of the ICCPR – text and basic test

Article 19 of the International Covenant on Civil and Political Rights recognizes a protected right to hold opinions and to express ideas but explicitly permits restrictions when they are provided by law and pursue a legitimate aim such as national security, public order, or the rights of others.

That treaty text is the starting point for modern international law on limitations and makes clear that restrictions must be lawful and tied to specified public interests rather than open-ended justifications ICCPR Article 19.

General Comment No.34 – four-part test explained

The UN Human Rights Committee’s General Comment No.34 provides an operational test that states and courts use when assessing restrictions: the measure must be provided by law, pursue a legitimate aim, be necessary in a democratic society, and be proportionate to that aim.

General Comment No.34 emphasizes that limitations should be interpreted narrowly to protect free expression and that any restriction must be justified on the specific facts of the case rather than applied broadly UN Human Rights Committee’s General Comment No.34.

Operational guidance for hate speech and incitement: the Rabat Plan of Action

High thresholds for criminalization

The Rabat Plan of Action provides practical guidance aimed at helping states set a high threshold before criminalizing hate speech or speech that incites discrimination, hostility, or violence.

The Plan stresses that criminal sanctions should be reserved for the most serious forms of speech and that lawmakers should avoid broad bans that could sweep in lawful, protected expression Rabat Plan of Action.

Intent, imminence, and likelihood explained

Rabat recommends assessing intent, imminence, and likelihood of harm when considering sanctions for speech that targets protected groups, urging clear evidentiary standards so that only speech with a demonstrated risk of real-world harm is penalized. Related discussion is available from Article 19.

That approach is meant to ensure criminal law targets conduct that is truly dangerous rather than controversial or offensive expression Rabat Plan of Action.

When U.S. law permits limits: Brandenburg, defamation, and related doctrines

The Brandenburg incitement test

In U.S. criminal law, the Supreme Court’s Brandenburg decision sets a narrow test for criminalizing speech as incitement: the speaker must intend to produce imminent lawless action and the speech must be likely to produce that action. See the evolution of incitement online here.

This means that abstract advocacy or offensive rhetoric is often protected unless the government can show both intent and a real and immediate risk of violence or lawbreaking Brandenburg v. Ohio.

Defamation standards for public figures and private individuals

U.S. defamation law distinguishes public figures from private individuals: when a plaintiff is a public official or public figure, the New York Times Co. v. Sullivan standard requires proof of actual malice for recovery, raising the bar for limiting speech about public affairs.

Private plaintiffs face a lower standard in many jurisdictions, but courts still balance reputation interests against First Amendment protections and apply contextual tests to determine liability New York Times Co. v. Sullivan.

How Europe balances freedom of expression with other rights: Article 10 and Handyside

Article 10 protections and permissible restrictions

Article 10 of the European Convention on Human Rights protects freedom of expression but allows restrictions that are prescribed by law and necessary in a democratic society to protect interests such as public safety, morals, or the rights of others.

The text of Article 10 frames the European baseline for national laws and invites judicial scrutiny of restrictions to ensure they meet lawful and proportionate standards before they are upheld UN Human Rights Committee’s General Comment No.34.

Margin of appreciation and proportionality in practice

The European Court of Human Rights uses proportionality and the margin of appreciation to decide when a restriction is justified, allowing some national leeway while requiring courts to assess whether a restriction is necessary and proportionate in each case.

Handyside v. United Kingdom demonstrates the Court’s case-by-case balancing approach, where the presence of a clear legal aim and careful proportionality analysis determines whether limits are acceptable Handyside v. United Kingdom.

Concrete examples where limits are commonly applied

Incitement to imminent lawless action

One classic example is speech that meets the Brandenburg incitement test: a speaker who intends to and is likely to cause an immediate violent act or lawless behavior may face criminal liability under U.S. law.

That example shows why imminence and likelihood are central to criminal restrictions on speech rather than general hostility or advocacy of abstract ideas Brandenburg v. Ohio.

Targeted threats and direct harassment

Targeted threats or persistent direct harassment directed at a private individual can be limited because they create a concrete risk of harm and invade personal security; many legal systems treat such targeted conduct differently from broad public debate.

Restrictions in these cases focus on protecting the rights and safety of individuals rather than silencing public discussion, and courts look for clear evidence of a direct threat or repeated abusive behavior UN Human Rights Committee’s General Comment No.34.

Defamation and false statements harming reputation

Defamation law provides another common example: knowingly false statements that harm a person’s reputation can be actionable, with higher protection for speech about public figures to avoid chilling debate on public affairs.

The New York Times Co. v. Sullivan standard reflects the balance in U.S. law, where public-figure plaintiffs must show actual malice, while private plaintiffs may obtain remedies under different standards New York Times Co. v. Sullivan.

A practical decision framework for lawmakers, courts, and platforms

Step 1: Is the restriction provided by law and sufficiently clear?

Step one requires that any restriction be based on a clear legal provision so individuals can foresee what conduct is prohibited; vague laws create unpredictability and risk invalidation under international guidance.

This legality requirement comes from General Comment No.34 and serves to limit arbitrary enforcement and protect expressive activity that is lawful UN Human Rights Committee’s General Comment No.34.

Step 2: Does it pursue a legitimate aim?

Step two asks whether the restriction serves a legitimate aim recognized in international or domestic law, such as protecting national security, public order, public health, or the rights of others, and requires documentary justification.

Courts and reviewers should require the state or platform to articulate the specific harm addressed and why less intrusive measures would not suffice ICCPR Article 19. Learn more on the about page.

Step 3: Is it necessary and proportionate? Plus documentation and review

General Comment No.34 and Rabat both encourage narrow drafting, procedural safeguards, and transparency so that restrictions remain targeted and subject to oversight UN Human Rights Committee’s General Comment No.34.

Common errors, enforcement pitfalls, and emerging challenges

Overbreadth and vague drafting

Overbroad or vague laws are a common error because they fail the legality and necessity tests; they can chill lawful expression by leaving too much discretion to enforcers and judges.

International guidance warns against vague criminal provisions and recommends precise language that targets specific wrongful conduct without suppressing debate Rabat Plan of Action.

Chilling effects and misuse of anti-disinformation tools

Broad moderation policies or poorly designed anti-disinformation tools can create chilling effects by removing or downranking lawful but controversial speech, so platforms and regulators must calibrate measures carefully.

Unsettled questions remain about how to apply traditional legal tests to automated content moderation and how to preserve appeals and transparency mechanisms to reduce wrongful suppression UN Human Rights Committee’s General Comment No.34. See analysis by Brookings.

Cross-border enforcement and AI-generated content

Enforcement across borders and regulation of AI-generated content present emerging challenges because speech produced in one jurisdiction can spread globally, and automated generation raises novel questions about intent and attribution.

These areas are actively debated in 2026 and international guidance has not settled all application questions, so policymakers are urged to proceed cautiously and emphasize transparency and review Handyside v. United Kingdom.

Short case scenarios: applying the tests to real-style examples

Scenario A: A public rally and an incendiary speech

Imagine a speaker at a public rally who urges the crowd to take immediate violent action against a particular group; if the speaker intends that outcome and the speech is likely to produce imminent lawless action, the Brandenburg test points toward criminal liability.

Applying the test requires evidence of intent and likelihood, and courts would assess the immediacy of the call to action and surrounding context before upholding a restriction Brandenburg v. Ohio.

Scenario B: Online targeted harassment of an individual

If an individual is repeatedly threatened online with death or harm, the targeted nature of the messages and the real risk to the person’s safety support limiting that speech under standards that protect personal security and prevent direct threats.

Reviewers would look for repeated conduct, credible threats, and a clear connection between speech and risk to determine whether restrictions are necessary and proportionate UN Human Rights Committee’s General Comment No.34.

Scenario C: Alleged defamation of a public official

When a public official alleges that false statements damaged their reputation, the New York Times Co. v. Sullivan standard requires the official to show that the speaker acted with actual malice before restricting speech or awarding damages.

That higher standard for public-figure plaintiffs reflects the U.S. emphasis on open debate about public officials and guards against chilling criticism of public actors New York Times Co. v. Sullivan.

Conclusion and further reading (what voters should take away)

Key takeaways

The central point for voters is that freedom of expression should be limited only under narrow, law-based tests that require legality, legitimate aim, necessity, and proportionality, with higher thresholds for criminal sanctions and hate speech. See the constitutional rights page.

Primary sources such as the ICCPR, General Comment No.34, the Rabat Plan, Brandenburg, and New York Times Co. v. Sullivan describe the criteria courts and lawmakers use to decide when limits are justified UN Human Rights Committee’s General Comment No.34.

Where to read primary sources next

For further detail, readers should consult the texts and case law cited in this article to see the exact legal language and judicial reasoning that underpins limits on expression. See the news page.

When candidates or policymakers propose new restrictions, voters and journalists should look for clear citation to these primary sources and for evidence that proposed measures meet the four-part test before supporting them ICCPR Article 19.

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