By Daniel Payne
Monday, August 22, 2016
Americans generally do not appreciate the United States’
astonishing free speech regime, particularly compared to the historical
bastions of political liberalism in Western Europe.
The French penal code criminalizes “defamation” of people
based on “their membership or non-membership, real or supposed, of an ethnic
group, nation, race or religion;” in Britain the police can investigate you for
criticizing Muslims; in Ireland they have something called the “Prohibition of
Incitement to Hatred Act,” which prohibits “inciting” “hatred” against anyone
based on, among other factors, “membership [in] the travelling community” and
“sexual orientation” (Ireland also forbids speech that “undermine[s] public
order or morality or the authority of the State”). Even our neighbor to the
north, Canada, forbids people from “incit[ing] hatred against any identifiable
group.”
America is not like that: in the United States, you can
incite hatred against a gay gypsy Muslim bureaucrat, even specifically because he is a gay gypsy Muslim
bureaucrat, and you will not be thrown in jail. In America you can say just
about any offensive thing imaginable, directed at just about any group or
person imaginable, and you’ll be okay. Add to that the strong protections for
political speech that statute and Supreme Court precedent have established, and
America is almost unique among the nations of the world in terms of freedom of
expression. We have it good.
But that might not always be the case. In fact in the
very near future American free speech may be sharply curtailed. It is not a
sure thing—Supreme Court precedent regarding the First Amendment is robust
enough to present would-be censors with something of a challenge—but
nevertheless there is a good chance that American enemies of American free
speech will shortly mount a sustained and eventually successful effort to
drastically reduce American speech freedoms.
Who are these enemies? There are three of them: Hillary
Clinton (backed by a Democratic Party that is rabidly anti-free speech), Donald
Trump (unchallenged by a weak and useless Republican Party), and, most
tragically, the American people themselves.
Hillary Clinton
With the possible exceptions of John Adams and Woodrow
Wilson, there might never be a president more hostile to freedom of speech than
Hillary Rodham Clinton. Clinton has promised, if elected, to introduce a
constitutional amendment within her first month in office that would
effectively repeal the First Amendment by overturning the Supreme Court’s Citizens United v FEC decision from
2010.
Very simply, Citizens
United ruled that Americans do not lose their freedom of speech rights when
they band together in corporate form and under the auspices of labor unions and
other types of organizations. Practically speaking, this was an uncontroversial
and obvious affirmation of American First Amendment rights. But Hillary Clinton
has set herself up against this ruling as if it were the Black Death, claiming
her litmus test for nominating Supreme Court justices is if they will vote to
overturn Citizens United and thus
make it more difficult for Americans to speak freely and openly.
Clinton actually has a long history
of anti-free speech positions, so in a sense this is unsurprising. But now
she is poised to become president of the United States, and with that bully
pulpit—and the power of the executive order—you can be sure her avaricious,
relentless desire to curtail free speech will be a potent threat to our
precious First Amendment freedoms.
You can be equally certain the Democratic Party will be
happy to help her out. The Democratic platform not only calls for overturning Citizens United but also calls upon the
Justice Department to “investigate allegations of corporate fraud” of fossil
fuel companies “accused of misleading shareholders” on “the scientific reality
of climate change.” This is a creative way of calling on government to
prosecute skeptics of global warming hysteria.
In addition, the DNC calls upon Democrats to “condemn
hate speech that creates a fertile climate for violence.” It is essentially
guaranteed that, within a few years’ time, the “condemnation” of “hate speech”
will progress to demands for an outright prohibition. Progressives in Europe
have already done it; progressives in America are assuredly not far behind.
Donald Trump
You might think the Republican nominee for president
would stand as a counterweight to the Democratic nominee’s censorious
tendencies. You would be wrong. Trump himself has come out against super PACs,
which are simply coalitions of American citizens who have banded together to
voice their political opinions. Trump has also vowed to “open up” libel laws in
order to silence his critics.
Lest you think this is an empty threat, it’s important to
note Trump has already admitted to using libel laws to silence his critics. He
also called for “closing [the] Internet up in some way” to combat terrorism,
while dismissing those who would be concerned about freedom of speech as
“foolish people.”
Would the GOP stand against Trump’s demonstrable
hostility to the First Amendment? Not likely. Much of the Republican
establishment has already proven itself reluctant to challenge Trump in any
substantive way. Trump’s obvious antipathy to freedom of speech, coupled with
his strongman ambitions and lack of resistance from an emasculated GOP, could
pose a serious if not existential threat to American freedom of expression.
The American
People
Surely, even if our corrupt and power-hungry elite ruling
class opposes freedom of speech, the American people will resist any real
efforts to curtail the First Amendment, right? Not so fast. There are genuinely
distressing signs that the culture of
American free speech is as endangered as the policy.
Some poll numbers suggest as much: two-thirds of
Americans, for instance, think people who engage in “hate speech” are “more
dangerous” than the people who would censor it. Among younger
Americans—millennials—the polls indicate a staggering opposition to freedom of
speech: out of 800 students polled at colleges across the country, more than a
third believed the First Amendment does not protect “hate speech,” with a third
also claiming the First Amendment is “outdated;” more than half believe
colleges should have speech codes to police the speech of students and
professors.
Forty percent of millennials, meanwhile, think government
should be able to censor “offensive statements about minorities.” Indeed,
millennials appear to be the most censorious generation alive. As older
generations die off or become less politically active, we can assume that more
and more anti-free speech millennials will make up a larger and larger share of
the electorate.
All of which is to say: if we are worried about the
anti-free speech ambitions of our two presidential candidates and the parties
they represent, we should also be concerned about the American body politic, a
substantial percentage of which is greatly inclined to censor “offensive”
speech. A generation so inclined to muzzle its fellow Americans could pose an
existential threat to the First Amendment.
Fight for the
Right to Speak Freely
So how do First Amendment-loving Americans fight against
this rising tide of illiberal anti-speech hostility? The solution is actually
quite simple: we must take an absolutist zero-tolerance position regarding
censorship and speech policing. In the same way that the National Rifle
Association is relentless in fighting the curtailing of Second Amendment
rights, Americans must relentlessly protect First Amendment rights.
This means fighting against efforts to overturn Citizens United (and fighting more
broadly against any efforts to censor and police political speech); combating
speech codes on college campuses and elsewhere; working tirelessly against the
wannabe-tyranny of people like Trump and platforms like that of the Democratic
Party; and fighting vigilantly for the right of all Americans to say what they
what, about what they want, in whatever way they choose to do so.
This does not mean you have to defend things like libel
or other knowingly false and slanderous statements. It simply means you must
fight for the precious free speech rights of every American citizen against the
growing effort to criminalize those rights. (It might also help if you familiarized
yourself with the Supreme Court rulings on free speech. Knowledge can be an
invaluable tool when fighting against illiberalism and authoritarianism.)
These concerns are not academic or theoretical. As much
of the rest of the world proves, governments are usually extremely willing to silence and censor their citizens, and too
often the citizenry is willing to lay down and take it. The American tradition
of free speech is very strong and well-established. But that doesn’t mean it
can’t be swept away. It is up to all of us—as American citizens and freeborn
men and women—to guard against these encroachments on our God-given liberties,
and to ensure that the invaluable American free speech regime continues as long
as does the American Experiment.
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