Free Speech, America-Style

By Kevin D. Williamson

Tuesday, January 04, 2022

 

It is not the case that Canada, Western Europe, and Australia are authoritarian hellholes where illiberal rulers trample mercilessly upon the civil rights of their hapless subjects. But it is the case that American-style free-speech protections, as enshrined in the First Amendment, do not exist in these places. And that matters. It matters in those countries, and it matters in the United States, where the legal protection of free speech faces the threat of being suffocated by social pressure on both private and public actors to suppress speech that is deemed — almost always opportunistically and vindictively — dangerous.

 

It is likely that, as a matter of global consensus, one set of rules is going to prevail: the American model or the European model — or, rather than “European,” the model that more closely resembles the narrower practices in most of the liberal democracies outside the United States.

 

Consider the case of Australia, where courts have ruled that there is no personal right to free speech, in spite of the country’s notional protections for freedom of political communication. In one important case, a worker in the national government’s immigration agency was fired for criticizing the agency’s performance in the matter of offshore immigration-detention facilities. She used a pseudonym, did not advertise her connection to the agency, made the posts on her own time from a personal device, etc. There was no real employment issue — she was simply fired for saying what she thinks, in private life. In another high-profile case, a high-court judge described free-speech rights as “still not yet settled law.” No doubt the judge is correct — but such rights should be settled law. These are fundamental things.

 

Australia’s laws are much more like those that apply in Europe than they are like our own. Australian law varies by jurisdiction, but there are sanctions on so-called hate speech (and other kinds of speech) everywhere in the country, and, in some instances, those penalties are criminal rather than merely civil. As we have seen in both the English-speaking countries and in Europe, what counts as hate speech is easily expanded, meaning that the real scope of free speech is easily narrowed. In Germany, Christian pastors have been arrested for preaching against homosexuality. The same is true in Sweden. And England. And in the United States, too — even constitutional protection will not avail against committed institutional opposition.

 

Of course, there is always some pretext, some argument that free speech does not apply in this case because the speakers are not really speaking but inciting, creating some kind of real and present danger. There may be some merit to some of those arguments in some circumstances, but they are quickly and easily perverted. For example, the fact that trans people have a relatively high rate of suicide has been (cynically and opportunistically) taken to mean that criticism of trans-related political stances and ideologies are literal violence against trans people, who, being traumatized by political disagreement, presumably will jump off the nearest bridge. That isn’t much of an exaggeration.

 

The countries that have the most compelling argument for exceptions to free political speech are, for obvious reasons, German-speaking. In Austria, for example, the law allows for imprisoning people — for years — for the crime of selling certain books. (You can guess which ones.) Germany, guided by the doctrine of streitbare Demokratie — “militant democracy,” the notion that liberal democracies must sometimes act in illiberal and antidemocratic ways to defend the fundamental elements of liberalism and democracy — gives the state the power to prohibit not only books and films but also to ban political parties that are deemed hostile to the German constitutional order. To American ears, this sounds shocking — or, it once did: Increasingly, Americans, especially younger Americans, sympathize with such limitations on freedom of speech and freedom of political action.

 

Given the current character of American political life, what should interest us more than how they handle nationalist literature in Vienna is the question of how they use Covid-era anti-disinformation laws in Ankara — and how the Turkish government does it under Recep Tayyip Erdoğan is pretty much how you would expect: Critics of the government’s response to the epidemic were rounded up on charges of sowing panic and spreading disinformation, for the crime of suggesting “that officials had taken insufficient measures,” as Reuters put it. In December, Erdoğan announced that social media had “turned into one of the main sources of threats to today’s democracy” and that his government would pursue measures to criminalize “misinformation.” The first bit of information to respond to there is pretending that the biggest threat to democracy in Turkey is someone other than Recep Tayyip Erdoğan. But that is not how this will go.

 

The coronavirus epidemic has provided cover for authoritarian regimes around the world looking to crack down on dissidents. As Foreign Policy reported, by April of 2020 at least 17 people had been arrested on “fake news” charge in Cambodia; Thailand labeled most criticism of the regime’s coronavirus program as “misinformation” and arrested critics; the predictably thuggish regimes of Egypt, Russia, Hungary, Iran, the Philippines, Honduras, and Azerbaijan behaved exactly as expected, while the governments of Singapore and South Africa both reverted to their illiberal instincts.

 

Do not think, for a second, that it couldn’t happen here. These same illiberal instincts are ascendant in the United States, as well. But, for the moment, they are constrained by the Bill of Rights. And that is to be celebrated and cherished. But protecting American rights in American law is not enough. Law can put the brakes on the worst impulse in the culture, but culture always wins.

 

And there is more than American culture and American law in play here.

 

As I have argued for some time, Americans should keep an eye on speech regulations abroad, because these are likely to provide the model for the de facto regulation of free speech in the United States by social-media platforms. In much the same way that California’s more stringent statewide environmental rules end up becoming in effect a national standard for many industries, it is likely the case that relatively illiberal European speech rules will become the consensus global standard absent some real leadership on that issue from the United States — which is nowhere to be seen. The reason for this is not mainly political or ideological but managerial: Mark Zuckerberg, among others, has forthrightly called for a “more standardized approach” to regulation. Market incumbents always prefer standardization. Regulatory compliance is a cost center, not a profit center, and it is much less expensive and less cumbrous to comply with a single body of regulation than with hundreds or thousands of them.

 

I am a believer in a rules-based international order and understand that such systems require consensus and compromise. But in the matter of free speech, we should expend at least some effort to ensure that the rules that emerge are rules that reflect American values, which are, in this case at least, the ones that most deserve to prevail. There is much to admire about governance in Germany or New Zealand, but their milk-and-water approach to free speech is not one of them.