Is it permissible for the state to suppress speech that incites murder and other serious rights violations? The orthodox view in free speech theory holds that the right to freedom of expression broadly protects such speech, except in cases of rare emergency. This article rejects this view, and in so doing offers a revised framework for this debate. It contends that there is an enforceable moral duty to refrain from speech that endangers others by advocating the clear violation of their moral rights—a duty that limits the right to free speech itself. The real debate to be had is whether this duty ought to be enforced, all-things-considered. The article shows that many familiar claims about free speech—e.g., concerning chilling effects, risks of political abuse, and the importance of counter-speech—are rendered far more plausible once reconstructed as objections to the enforcement of speakers’ duties, rather than justifications for speakers’ rights.

The upshot of the analysis is that while dangerous speakers are not typically wronged by the enforcement of their duties not to incite, enforcement may remain impermissible. Only by attending to proportionality and necessity constraints on the use of force—familiar from the ethics of defensive harm and just war theory, but strikingly ignored in the free speech literature—can we determine whether dangerous speech may be restricted. If it should be restricted, it is only because the justified law of free speech is asymmetric to the underlying “deep morality” of free speech, thus mirroring a similar asymmetry between law and morality in other areas of political philosophy (most notably, war).

The article is here.