In his response to my essay, Anthony Leaker argues that free speech is being abused to further all kinds of nefarious agendas including racism, xenophobia, transphobia, nationalism, and marginalization of minorities. At its core, Leaker’s argument seems to boil down to the fact that people he vehemently dislikes exercise their right to free speech to advance ideas Leaker hates. Which admittedly is a built-in feature of free speech.
Leaker conveniently omits to detail what being “against free speech” entails. Does it mean rolling back legal protections in order to remove the platform from those he deems beyond the pale? We’re not told. But it would seem the natural consequence. As such it is difficult to distinguish Leaker’s free speech fatigue with the underlying sentiments of the plurality (45%) of American Republicans who favor allowing courts to “shut down news media outlets for publishing or broadcasting stories that are biased and inaccurate.” Presumably they hold this opinion because CNN, the Washington Post, and the New York Times are “enemies of the people,” due to their constant criticism of President Trump. Leaker and Republicans are divided by insurmountable ideological differences. But they are united by a sense of moral superiority that justifies the denial of free speech for “the others” whose views contaminate the public sphere and therefore must be stopped. Leaker’s response is thus a prime example that “morality binds and blinds,” in the words of Jonathan Haidt.
Since Leaker hasn’t done so himself, please indulge me as I imagine a world where Leaker’s arguments “against free speech” have won the day. Of course, we don’t need to imagine what a society with no free speech means in authoritarian states like Egypt, Russia, Iran, or Saudi Arabia, where dissidents and reporters languish in jail. Although Leaker doesn’t acknowledge the difference between democracies and authoritarian states, as of 2017, 262 reporters were imprisoned for doing their jobs in the latter, versus zero in the former. So in the following I’ll focus solely on what western democracies might look like in, say, ten years if free speech is abandoned.
In the United States, the First Amendment has been repealed in order to better reflect the diversity and experiences of traditionally marginalized and disempowered groups. In Europe, concerned democratic leaders have removed free speech protections from human rights conventions, so as to remove the platform from resurgent populist xenophobia and ethno-nationalism.
In this new legal environment, state legislatures in the coastal United States, including New York, Massachusetts, and California, have passed laws that prohibit causing “emotional distress” by insulting a person on the basis of race, color, descent, national or ethnic origin, sexual orientation, gender, gender identity, or religion. In addition to white supremacist and alt-right groups, these laws have been used to prosecute Tea Party members and supporters of tougher immigration laws. Most prosecutions deal with online slurs on social media, where sarcasm and humor is not always a valid defense. The denial or trivialization of the enslavement of black Africans has also been criminalized. These laws have been given more teeth by the establishment of Human Rights Commissions entitled to assist victims with complaints. Public universities have adopted elaborate speech codes that govern speech and conduct on campuses. After a number of school shootings, the advocacy of activities that may increase gun violence has been prohibited, effectively banning the activities of the NRA.
But in the South, things have turned out differently. States like Alabama, West Virginia, and Mississippi have passed laws prohibiting the denigration of the Constitution, symbols, and founding values of the United States. These laws have been used to ban or prosecute members of groups like Black Lives Matter, Antifa, and CAIR. Protesting these measures has proved difficult, since several state supreme courts have decided that demonstrations in favor of banned groups constitute denigration in itself. Accordingly demonstrations can be denied and protestors arrested.
Several states have specifically prohibited the adoption, advocacy, or defense of sharia-law, which has seen the arrest and prosecution of a number of imams. These states have also banned the construction of mosques and banned Muslims from holding public offices. Some city councils have banned pride parades, while others ban the prominent public display of “obscene or grossly immoral” material, a law which has been used to target not only porn, but atheism and LGBT literature. At southern universities, speech codes ensure proper respect for patriotic and traditional values, and prohibit teaching courses that “distort” confederate history. Several professors have been fired for teaching that the Civil War was fought over the issue of slavery rather than states’ rights. Southern “fake news” laws have been targeted at liberal media with CNN and MSNBC ordered to pay huge fines for disseminating false and distorting information. In both liberal and conservative states clamping down on unpopular groups has become an important part of electioneering. Politicians, sheriffs and district attorneys often promise a “zero tolerance policy” against offending speech, and being “soft on hate” is a losing strategy.
In the UK, Prime Minister Jeremy Corbyn has strengthened laws against religious hatred by reviving a previously defeated bill making it a crime to insult the religious feelings of believers. Conviction under hate speech laws no longer requires threats to public order, and these laws are used to ban or prosecute members of groups like the English Defense League, PEGIDA, and UKIP. The hate speech ban has also been expanded to cover Zionism.
However, after Boris Johnson’s conservative government came to power, priorities changed. Laws are passed against advocating the boycott of Israel, as well as indirectly glorifying and condoning terrorism, which is used against pro-Palestinian activists and Muslim groups. Facing growing popular support for reentry into the EU, the conservative government is considering a law prohibiting advocacy aimed at undermining the independence of the UK. Elsewhere in Europe, Dutch Prime Minister Geert Wilders finally delivers on his promise of banning the Quran. His government also copy-pastes and expands Hungarian Prime Minister Victor Orban’s law prohibiting NGOs from advocating “illegal immigration.” The EU adopts a directive on combating fake news obliging all member states to establish public watchdogs with the power to identify and remove false information aimed at undermining the values of the member states. And after pressure from former communist states, the EU expands its current prohibition against certain forms of Holocaust denial to also cover the denial of the crimes of communism, which leads to the banning of communist literature and symbols in much of Central and Eastern Europe.
If this scenario sounds far-fetched and ridiculous it is only because we are lucky enough to live at a time when free speech is taken for granted in liberal democracies. The decline I documented in my first essay is not yet felt by the ordinary citizen, and for now at least it mostly affects deeply unpopular and marginalized groups of individuals.
But not that long ago scenarios close to those described above were very real. From 1836-1844 the U.S. House of Representatives applied the so-called gag rule prohibiting the House from addressing any petitions on the abolition of slavery. In the South, several states prohibited abolitionist speech and literature, whereas the North chose another cause. But according to Michael Kent Curtis not necessarily out of sympathy with abolitionist speech:
Northerners feared that making an exception to allow suppression of abolition expression, however desirable such an exception might otherwise be, would undermine the citadel protecting free expression and leave free speech vulnerable to a variety of other assaults.
It was principle that allowed abolitionists free speech in the North. But absent laws, power and privilege still conspired against abolitionist ideas. In 1860 an abolitionist meeting in Boston was violently disrupted by white business owners and their thugs, who feared their commercial interests in the South would be jeopardized by abolitionist rhetoric. Among those heckled to silence in Boston was the former slave Frederick Douglass. He was perhaps America’s most effective abolitionist. The humiliation of being heckled with impunity caused Douglass to pen his famous speech “A Plea for free speech in Boston.” In it he made a passionate defense of free speech as being the instrument of the weak against the powerful and unjust: “Slavery cannot tolerate free speech. Five years of its exercise would banish the auction block and break every chain in the South,” he wrote. And contrary to Leaker’s idea that free speech perpetuates racism, Douglass held, “A man’s right to speak does not depend upon where he was born or upon his color. The simple quality of manhood is the solid basis of the right—and there let it rest forever.”
The abolition of slavery did not do away with racism or discrimination in the United States. But in the fight against segregation free speech was once again the ally of racial justice, and repression the preferred tool of supremacists. The former slave and civil and women’s rights activist Ida B. Wells combined bravery with journalism to document the sickening extent of lynchings in the South. Whites retaliated by burning down her newspaper—called Free Speech—forcing her to flee north amid an avalanche of death threats. In the 20th century thousands of blacks were arrested across the South for protesting segregation. In the 60s several black activists - including Martin Luther King, Jr.—were arrested for praying outside city hall in Albany, Georgia. Other civil rights activists were arrested for “distributing literature without a permit” and holding a sign with the words “One Man/One Vote.” Often these measures had to be fought and overturned in federal courts since local southern judges were hostile to the civil rights movement and simply ignored the First Amendment. The civil rights movement’s reliance on the First Amendment makes a mockery out of Leaker’s baseless claim that “then as now the loudest defenders of free speech were those least likely to grant it to others.”
In the UK, free speech has also been denied to advocates of progressive causes. In the 19th century the publisher and deist Richard Carlile spent several years in prison for selling the works of Tom Paine. According to the public prosecutor he was persecuted “for the purpose of protecting the lower and illiterate classes from having their faith sapped and their minds divested from those principles of morality, which are so powerfully inculcated by the Christian religion.” In other words blasphemy laws were used to keep the lower classes in check and to entrench and conserve privilege. The exact opposite of what Leaker hopes to achieve by dumping free speech on the ash heap of history. What about Leaker’s concern for homophobia? As late as the 1979 the editor of a British LGBT magazine was convicted for blasphemous libel, after publishing a homoerotic poem on the crucifixion of Christ. In Russia a 2013 law was adopted banning “homosexual propaganda,” showing that the LGBT community is deeply dependent on free speech as a protection against moral panics.
Of course Leaker may protest and insist that he never argued for the types of speech restrictions adopted in my future scenario. And that the historical examples that I’ve mentioned are obviously not ones he wishes to repeat. He may say that the limits on free speech he has in mind are entirely different in scope and subject matter. That they will ensure the perfect balance between justice and fairness. But this is also the fatal flaw in Leaker’s argument. For one cannot simultaneously be “concerned about global developments of rising authoritarianism, the gutting of democratic values and processes, attacks on civil liberties and the right to protest” and “against free speech.” Because once free speech is abandoned as a fundamental principle, political majorities have a free hand in drawing the red lines. In the United States that would currently hand the pen to President Trump and a Republican Congress egged on by revanchist and hyper partisan voters. In the UK it would be Theresa May’s conservative led government. I’m guessing Mr. Leaker is a fan of neither and would be appalled by the restrictions on speech which, say, a Trump administration would enact if unrestrained by the First Amendment. In fact, judging by Leaker’s essay I’d venture a guess that very few mainstream political parties fit his political ideals. So until the faculty of critical theory at a liberal arts college is given absolute power, Leaker might well become the target rather than the beneficiary of laws “against free speech.”
 Leonard Levy, Blasphemy (1993) p. 358