About this Issue
Libertarians tend to admire the First Amendment to the U.S. Constitution; its protections on the freedoms of speech and the press are generally far more extensive than those found in other countries. Yet the world is becoming smaller and more connected all the time. American multinational corporations are commonly subject to competing rules about free expression in other parts of the world — and yet these same corporations supply the social media venues where many of us prefer to exercise our First Amendment rights. How durable a guarantee does American law supply in our interconnected age? Are we in danger of seeing countries with more restrictive speech regimes gradually erode the freedoms of the free world, and particularly those of the United States? Or does the newly global conversation demand a set of global rules? Do those who seek to limit hate speech have a point after all, particularly online?
For our look at the international dimensions of free speech activism, we’ve invited Danish lawyer and activist Jacob Mchangama to write the lead essay. Responding to him will be Dr. Anthony Leaker of the University of Brighton, Professor Jeremy Waldron of New York University, and Jonathan Rauch of the Brookings Institution.
How Censorship Crosses Borders
In ”On Liberty” J.S. Mill wrote “The time, it is to be hoped, is gone by when any defence would be necessary of the “liberty of the press” as one of the securities against corrupt or tyrannical government.” That was in 1859. Since then not even the calamitous effects of two world wars or the spread of communism have been able to buck a long term global upward trend in the spread and protection of free speech. Not until very recently, that is. For more than a decade Freedom House has measured a decline in the global protection of press freedom. The Varieties of Democracy dataset registers a global drop in respect for free expression setting in about 2013. The Economist’s 2017 Democracy Index was headlined “Free Speech under Attack” and concluded that less than half the population of the world now has access to free or even partially free media. In those countries where free speech is protected, the sphere of protection is shrinking. Reporters Without Borders recently concluded that “It’s in Europe, the region where press freedom is the safest, that the regional indicator has worsened most this year.”
The world seems to be witnessing a cross-fertilization of censorship across continents and regime types. This is best exemplified by Russia’s adoption of a social media legal code inspired by a German law requiring social media platforms to remove hate speech within 24 hours or risk huge fines. Restrictions on free speech adopted with good intentions by democracies end up serving nefarious ends of autocracies. Illiberal measures against fake news are also mushrooming. While President Trump makes seemingly empty threats against the “fake news media,” France has announced its intention to pass a law against false information. Malaysia has already done so, and Kenya is following suit. In 2017 a record 262 journalists were jailed, 21 of them for disseminating false information. We should add to this the continuous threat to free speech from private actors such as terrorists, drug cartels, and wealthy oligarchs.
But why should we care about free speech? History is full of ideas that made sense at a certain time and place, but have since been abandoned for new ideas deemed more suitable. And why should Americans, who are more supportive of free speech than any other people, and protected by the impenetrable walls of the First Amendment, worry about what happens to free speech outside the United States?
To answer those questions, it might be useful to take a brief look at history and in particular the relationship between free speech, liberty, and democracy. Free speech as an inalienable right of the individual is often seen as an Enlightenment child of the American and French Revolutions that gave rise to the Bill of Rights and the Declaration of the Rights of Man. But the roots of free speech stretch all the way back to the Athenian democracy from 507-322 BC. In Athens “equality of speech” (isegoria) and “uninhibited” speech (parrhesia) were integral parts of the egalitarian and democratic political culture. The Athenian orator Demosthenes laid out the stark difference between democratic Athens and its oligarchic enemies in Sparta. In Athens, you were free to criticize the Athenian constitution and praise the Spartan alternative. But in Sparta, praising any other constitution than the Spartan was prohibited. Though Demosthenes’ observation is 2300 years old, his description could apply to the difference between modern democracies and autocracies. Americans are free to criticize their own constitution and advocate its replacement with Chinese style one-party rule. But Chinese dissidents advocating American style democracy risk ending up behind bars.
Yet not everyone in ancient Athens was happy with democracy and free speech. In 411 BC a group of oligarchs used a national crisis to usurp the power of the people. Democrats were assassinated and democratic institutions were intimidated into subservient tools of the new regime. The ancient historian Thucydides wrote an account of the coup that comes close to describing recent developments in countries like Russia, Turkey, or Venezuela:
Fear, and the sight of the numbers of the conspirators, closed the mouths of the rest; or if any ventured to rise in opposition, he was presently put to death in some convenient way…the people remained motionless, being so thoroughly cowed that men thought themselves lucky to escape violence, even when they held their tongues.
In the Roman Republic, free speech was much less egalitarian than in Athens. Still, according to historian P.A. Brunt, “In the late republic freedom of philosophical, religious and even political speculation was unchecked.” But with the fall of the Republic, free speech went into terminal decline. When Cato the Younger committed suicide rather than accept a pardon from Caesar he explained, “I, who have been brought up in freedom with the right of free speech, cannot in my old age change and learn slavery instead.” [i]
Famously Marc Antony had the head and hands of his fiercest critic— Cicero—cut off and pinned to the speaker podium in the forum. As autocracy was consolidated under emperors Augustus and Tiberius, laws against “literary treason” were used against historians for praising long deceased republicans. These examples from antiquity serve as history’s first confirmation of what Thomas Gordon stated succinctly in Cato’s Letter No. 15: “Whoever would overthrow the Liberty of a Nation, must begin by subduing the Freeness of Speech.”
The United States is far from immune to censorial impulses. The Sedition Act of 1798 made it a crime to express “any false, scandalous, and malicious writing” against the government, Congress, or the President. Several critics of President John Adams ended up in jail before the act expired in 1801. The Espionage Act of 1917 was used to crack down on socialists, anarchists, and peace activists with draconian penalties for political speech. The Comstock laws prohibited the distribution of “obscenity” which included James Joyce’s Ulysses and Aristophanes’ Lysistrata. The “unique” protection of the First Amendment was never a given.
Ancient examples far removed from the dynamics of our digital age might not persuade modern netizens that censorship entails a clear and present danger to free societies. Most people have never had more opportunities to let the world know what they think in real time. Nor do citizens in democracies lack access to information despite the tens of thousands of comments deleted by content moderators on a daily basis.
But the case for free speech can also be made in the ultimate currency of the twenty-first century: data. Debates on free speech often includes claims about the effect of free speech on violence, extremism, radicalization and the like.
Some argue that extreme expression such as hate speech or glorifying terrorism leads to conflict and violence. Another school insists that extreme speech should be countered with “more speech.”
But very few use anything but anecdotal evidence to support their claims. Perhaps this is because there seems to be precious little empirical research about what relationship, if any, freedom of expression has with different outcomes.
So with the help and expertise of political scientist Rasmus Fonnesbaek Andersen, I recently undertook the task of reviewing existing studies and running original analyses of large datasets; a report is forthcoming. Our analysis is not perfect. Attempts to demonstrate causal links between freedom of expression and outcomes such as economic growth or terrorism are often frustrated by the inadequacy of data and the risk of omitted variables and reverse causality. Nonetheless, the statistical results from large datasets add an extra layer of depth to the anecdotal or purely theoretical arguments that tend to dominate debates on freedom of expression.
So what did we find? Generally speaking some of the most commonly expressed concerns regarding freedom of expression—such as its potential detrimental effects on social conflicts (including genocide), radicalization and terrorism—are not supported by the evidence. Only in the world’s most closed societies do we find evidence that loosening censorship can exacerbate existing conflicts. For the rest of world, we find a negative relationship between free speech protections and social conflict. The evidence thus suggests that the widespread narrative characterizing unbridled freedom of expression as a catalyst for religious conflict and even genocide is at best lacking in nuance.
Our findings are supported by a new and comprehensive study on right wing extremist terrorism and violence in Western Europe. The author finds that “extensive public repression of radical right actors and opinions” has been one of the likely drivers of right wing extremist violence in Northern Europe, and highlights “the paradox that countermeasures intended to constrain radical right politics appear to fuel extreme right violence”. This is not to say that speech will never lead to instances of violence or conflict, only that overall we should expect political and religious violence to increase rather than decrease when liberal democracies fight extremism with censorship.
Why is that? Israeli scholar Amichai Magen has found that democracies that protect political freedoms enjoy a “triple democracy advantage.” They suffer fewer attacks, with a lower rate of increase, and fewer fatalities than illiberal democracies. Magen suggests that political freedom, including free speech, allows grievances to be voiced before they boil over and turn violent. In fact one of the world’s most celebrated freedom fighters has given an eloquent explanation of why it is the denial rather than the protection of free speech that leads to violence. In 1964 Nelson Mandela was sentenced to life imprisonment for sabotage. At the trial Mandela delivered a famous speech in which he justified using violence against the Apartheid regime:
“All lawful modes of expressing opposition to [white supremacy] had been closed by legislation, and we were placed in a position in which we had either to accept a permanent state of inferiority, or to defy the Government”
If Nelson Mandela found violence legitimate in the absence of free speech, it shouldn’t surprise us if groups and individuals motivated by much less noble goals than Mandela would think so too. Even when their censors are democratically elected governments rather than authoritarian supremacists.
But free speech not only seems to reduce violent conflict. We also found stronger protections for freedom of expression to be significantly correlated with a number of beneficial societal outcomes that distinguish thriving societies: better human rights standards, less corruption, economic innovation, and (in non-democratic states) better conditions for democratically minded opposition parties. So it should be no surprise that the current free speech crisis goes hand in hand with a global reversal affecting freedom and democracy in general. The Russian attempts to influence the 2016 American presidential election are a good example of how a world dominated by censorious authoritarians may affect American democracy.
But the ability of Americans to effectively exercise their First Amendment rights may also be affected by developments outside the United States. Almost half of Americans get (some of) their news from social media. Social media platforms such as Facebook and Twitter are U.S. companies subject to minimal content based regulation. But since these platforms are global in reach social media companies are increasingly being regulated abroad. In 2016 Facebook, Twitter, Microsoft, and YouTube entered into a code of conduct with the European Commission agreeing to remove “hate speech” within 24 hours. A similar arrangement has been adopted with binding legal force in Germany, where a big tech firm risks fines of up to 50 million euros in cases of noncompliance. In Germany alone Facebook operates a “deletion center” with more than 1,200 “content moderators” who determine whether Facebook posts violate German laws. In effect the EU and Germany has strong-armed Facebook and Twitter to enact a privatized censorship regime where laws are interpreted and enforced by faceless and nameless employees with no public scrutiny. According to German authorities the law has resulted in Facebook removing 100% of illegal content, whereas the numbers used to be around 40%. Perhaps that’s why Canada, France, Italy, Israel, and the UK are considering similar initiatives. Arguably, the EU and Germany—though committed to liberal democracy—have helped create an instrument of censorship whose staff, reach, and efficiency considerably dwarfs that of the Congregation of the Index, responsible for the Index of Prohibited Books established by the Catholic Church in 1559, when the printing press was spreading the disruptive ideas of the Reformation.
But why does this concern Americans? European laws don’t apply in the United States, and Facebook and Twitter are private companies that can and do regulate content based on their own standards, which already exclude hate speech. Several prominent persons like the once notorious Milo Yiannopoulos have been banned from social media platforms for expressions that are protected by the First Amendment. Still, a more European approach to content moderation is likely to significantly affect the practical exercise of American online speech.
Not only do European and American definitions of free speech differ. So do attitudes about free speech. According to a 2015 Pew research poll 95% of Americans and 91% of Europeans think its very important to be able to criticize the government. Yet when you get more specific on where to draw the line, Europeans and Americans differ significantly. 67% of Americans think its important to protect statements offensive to minority groups and 77% support the right to offend religious feelings. In Europe the median is 47% and 46% respectively. Germans in particular stand out: only 27% support the right to offend minority groups, and a mere 38% the right to offend religious feelings.
As Facebook has come under pressure to deal with “fake news” and “hate speech,” CEO Mark Zuckerberg told lawmakers in both Washington and Brussels that Artificial Intelligence will help solve the problems with identifying the red lines of content that violate community standards and applicable laws. Facebook might then decide to program its algorithms to search and delete content based on standards developed in Brussels and Berlin rather than Washington. If this scenario sounds far fetched then consider that Facebook recently announced that it will increase privacy protections of users everywhere in light of the EU’s sweeping new General Data Protection Regulation (GDPR). Other U.S. tech companies such as Microsoft and Apple have taken similar steps or are going even further towards universal compliance with GDPR outside Europe.
If we imagine the content of social media being moderated by algorithms programmed to comply with European law, where would the red lines be drawn? That’s difficult to say with any precision.
Laws affecting free speech differ widely among European countries. However, the limits of free speech are ultimately defined by the European Court of Human Rights, which has jurisdiction over the 47 members of the Council of Europe. The Court has established that free speech includes the right to “offend, shock or disturb,” and has done much to protect press freedom. But on the most controversial forms of speech the Court has drawn a blurry line by holding that “as a matter of principle it may be considered necessary…to sanction or even prevent all forms of expression which spread, incite, promote or justify hatred based on intolerance.”
Among the examples of speech which the court has found outside the protection of free expression we find advocacy of a boycott of Israel, Holocaust denial (but not denial of the Armenian genocide), Islamism, comparing Islam with terrorism, offending the religious feelings of Christians and Muslims, anti-Muslim bigotry, anti-Semitism (including satire), glorification of terrorism (including satire), and homophobia. Indeed the Court has made clear that states may impose third-party liability on Internet platforms that fail to remove hate speech made by users in comments sections and similar venues. This has given European states a wide margin to prosecute social media posts deemed offensive or hateful. In June 2017 German police raided the homes of 36 persons accused of engaging in hate speech on social media. In the same year British police detained and questioned more than 3,300 people for “grossly offensive” comments on social media. That’s roughly nine arrests a day. A female British student was investigated and charged for using the Twitter hashtag #killallwhitemen. In 2018 a British YouTuber was convicted for posting a video in which, as a joke, he had taught his girlfriend’s dog to perform a Nazi salute and respond to anti-Semitism.
The First Amendment may have its flaws, and serious questions have been raised about its continued relevance in the digital age where “the coercive control of political speech” is no longer the only threat to free speech. The use of troll armies or drowning out speech with “reverse censorship” through bots or fake accounts may sometimes be more efficient in silencing online speech. The dominance of private actors also limits the relevance of a First Amendment largely concerned with state action. But as I hope to have demonstrated “classic” censorship and speech control is very much alive in the digital age outside the United States. The censorhip and speech restrictions adopted by European countries would probably be intelligibleto a 5th century Athenian or a citizen of the Roman Republic, who’d otherwise fail to understand the concept of trolls and bots. Unless the United States pushes back against the global free speech crisis, the world is likely to become less free, secure, and prosperous. And Americans might soon find that the First Amendment’s practical protection against this cross-fertilization of censorhip is limited, even when it comes to core political speech.
[i] [Cassius Dio: 43.10]
Against “Free Speech”
Jacob Mchangama concludes that “unless the United States pushes back against the global free speech crisis, the world is likely to become less free, secure, and prosperous.” In my view, the world is likely to, and indeed has, become less free, secure, and prosperous precisely because of the policies, ideologies, and values endorsed and promoted by the very people who insist on fostering the idea that there is a free speech crisis or who use “free speech” as a Trojan horse. Hysterical, unempirical claims about national free speech crises should be viewed as part of a broader propagandistic campaign aimed at reigniting and reconfiguring a culture war; as playing a pivotal role in resurgent right-wing nationalisms, part of an onslaught against a range of oppressed minorities and progressive gains of the last half century. The so-called free speech crisis is a self-serving myth manufactured, or at least capitalized on, not only by racist opportunists such as Geert Wilders or Tommy Robinson, but predominately white, male centrists seeking to preserve a dominant worldview that normalizes and universalizes the values of their gender, race, and class. How else to explain the sorry sight of successful, widely published establishment figures, “privileged, confident voices who have framed every debate since time immemorial,” attempting to paint themselves as beleaguered victims because their ability to indiscriminately offend, bully, exclude, and dominate has been challenged; because, for example, they are no longer able to celebrate the achievements of British colonialism without being criticized for dubious scholarship.
The mythmaking works primarily through the use of the “free speech defense”—invoking free speech as a sacred, universal principle in order to justify and legitimize racist, sexist, Islamophobic, or transphobic claims, and more importantly, to prevent challenges to structural, institutional, normalized racism, sexism, Islamophobia, or transphobia. The free speech defense inverts actual power relations—for example, the people making racist statements assert their victimhood when called out for their racism, decry censorship while denying their critics a voice, and refuse to consider how the conditions or terms of communication are not only biased but structured in their favor. That J.S. Mill is so often called upon to support such a defense is questionable at best. Mill sought to attack existing social arrangements, whereas today’s free speechers seek to defend and preserve them; Mill considered diversity central to social progress, whereas many of his supposed heirs promote fanciful notions of homogeneity; Mill was concerned with the oppressive nature of public opinion; he challenged dogma, stale arguments, and calcified points of view; he challenged custom described as nature, arguing that “the despotism of custom is everywhere the standing hindrance to human advancement.” And there are few staler, more customary arguments than those repeatedly trotted out to defend free speech. Above all, Mill recognized the importance of questioning the framing of debate or the conditions of possibility of argument.
It has become almost comically, but also tragically evident that “free speech” is being weaponized to legitimize a range of reactionary, anti-egalitarian, and exclusionary goals—from empowering corporations, increasingly the beneficiaries of First Amendment rights rather than individuals, to emboldening the alt-right and far-right, and to defending a zombie-like liberal center. As Katherine Gelber argues, “Never before has the catch cry of ‘free speech’ been used by so many so often as a catalyst for wider political objectives, many of which have very little to do with free speech at all.”
That the so-called free speech crisis is an ideological myth, that there is a glaring disjuncture between representation and reality, can be seen, for example, when the UK government commission concludes there’s no free speech crisis on campus—“evidence suggests that the narrative that ‘censorious students’ have created a ‘free speech crisis’ in universities has been exaggerated”—and yet the universities minister a few months later insists that the government regulator—the Office for Students (note the Orwellian title)—will intervene to police free speech activity on campus; when polls show that millennials in fact support free speech and yet are repeatedly caricatured as fascist snowflakes. We can likewise see the myth unravel when research shows that many supporters of free speech are indeed racist—and we can readily agree that “people who claim to be for ‘free speech’ when defending racist language do not really care about all speech, just the speech which agrees with their point of view.”
If there is a free speech crisis at all, then, it is that free speech has been co-opted to serve anti-democratic ends; has become the rallying point of decidedly unemancipatory political formations, invoked to attack equal rights, social justice, and basic norms of tolerance and inclusion; in this guise it is far removed from the Millian ideal of serving the pursuit of truth, progress, and the improvement of mankind.
There can be little doubt, however, that there is a global crisis of democracy. We should indeed be concerned about global developments of rising authoritarianism, the gutting of democratic values and processes, attacks on civil liberties and the right to protest; about ethno-nationalism and social exclusion; about the building of walls—literal and metaphorical—to shore up mythical and dangerous notions of nationhood; we should be concerned about increased militarization and about heavy-handed, sometimes lethal policing. Just as we should be concerned about the worrying trend in Europe of state hypocrisy and overreach on free speech matters. France, take a bow.
But that the United States, especially in its current plutocratic guise, can have a positive role to play in addressing these issues is doubtful. Here “it might be useful,” as Mchangama says, “to take a brief look at history,” at some of the ways freedom has been mythologized and mobilized for questionable ends.
“How is it,” asked Samuel Johnson, “that we hear the loudest yelps for liberty from slave-drivers?” Then as now the loudest defenders of free speech were those least likely to grant it to others. It would indeed be useful if there was a more widespread understanding of the origins of the United States as a settler colony and what Aziz Rana calls the “disquieting ideological roots of freedom as self-rule”; of how America’s democratic ideals were produced and sustained by colonial domination—the subjugation, forced removal, or outright murder of those deemed outsiders; and how “settler exclusion provided the basic governing framework for American life for over three centuries.”
It might also be useful if we want some understanding of the causes of this global crisis to consider the havoc wreaked by 50 years of devastating neoliberal ideology and policies, spearheaded and often imposed by the United States, which even the IMF admits have failed, producing gross inequality and economic stagnation. As Wendy Brown argues, it these policies, and above all neoliberal rationality, that have produced the conditions enabling political extremism to enter the mainstream.
Finally, the fact that the abuse of free speech in Europe and the United States needs to be criticized, that, in the UK at least, it is the press that is “corrupt and tyrannical,” does not mean that free speech and political freedom in other parts of the world do not need defending and promoting. It is possible and necessary to do both. The invocation of free speech for spurious ends does nothing to help those fighting for freedom in autocratic countries (not that I accept the distinction Mchangama suggests between autocracies and democracies, but that’s another matter). Such fights are not for abstract principles, but for concrete political change. Nelson Mandela, whom Mchangama cites, had concrete goals. His aim was to end apartheid, and apartheid can be viewed as a more explicitly institutionalized form of the brutalizing inequality, injustice, and lack of freedom suffered by marginalized and persecuted groups in the United States and elsewhere today. These are the people on the receiving end of the hate speech and extremist behavior that the “free speech” racket enables. If you are on the side of Mandela and contemporary freedom fighters, then you need to be against “free speech.”
 Mill, J. S., On Liberty and other Writings, Cambridge Universty Press, 1989, p. 70.
 Australian ex-Prime Minister Tony Abbott argued that the Australian marriage equality survey was actually about free speech, and that the realization of marriage equality would place freedom of speech at risk.
 Coates, John C., IV. “Corporate Speech and the First Amendment: History, Data, and Implications.” Constitutional Commentary 30, no. 2 (2015): 223-275.
As Wendy Brown notes “the project of empowering the private against democracy through the discourse of freedom is patently evident in First Amendment jurisprudence in the United States” (76). “The rubric is freedom, the ruse is corporations rendered as persons, and the project is rolling back restrictions and mandates of all kind” (77).
 “The line-up [of the board] makes a mockery of the idea that the new body’s purpose is to represent the interests of students: the board includes only one current student and no representatives from the National Union of Students.” https://www.lrb.co.uk/blog/2018/01/02/lorna-finlayson/bigger-problems-t…
 Cited in Losurdo, Domenico, Liberalism, Verso, 2011, p. 10.
 Rana, Aziz The Two Faces of American Freedom, Harvard University Press, 2010, p.10-11.
Some Questions for Jacob Mchangama
Jacob Mchangama’s essay is both thoughtful and thought-provoking. The first few paragraphs give us a sort of historical overview of free speech in the world since the days of Athenian democracy and the Roman republic. I am not sure how much guidance we can draw from this or how much we should want to. But we should certainly be interested in the present-day study whose results Mchangama reports in the body of his essay—a study he conducted with the help of political scientist Rasmus Fonnesbaek Andersen. As I understand it, the study shows that there is a negative relationship between free speech protections and social conflict: the more free speech there is in a society, the less conflict there is likely to be.
If this is right, then restrictions on hate speech cannot be justified in the way they are usually intended to be justified. Countries like the United Kingdom enacted racial hatred legislation in the mid-1960s because they feared the growth of intercommunal hostility between native Britons and new immigrant groups. They worried about their social environment being polluted by deliberate attempts to stir up racial hatred. Countries like Germany enacted hate speech legislation because of their experience in the 1930s and 40s of extreme hostility of ordinary Germans towards Jews especially and other minorities, and they did not want to countenance even the possibility of the resurgence of this sort of hatred.
But Mchangama and Andersen say they have found that in fact untrammeled hate speech does not exacerbate conflict of this kind. Defenders of hate speech regulation (like me) ought to sit up and take notice. For the study seems to suggest that the democracies of the world would be better off—or at least no worse off—so far as conflict-diminution is concerned if they were to dismantle the hate speech restrictions many of them have had in place for decades.
Full estimation of the value and implications of this study must await disclosure of the parameters of the investigators’ research and, in particular, the exact questions and comparisons they essayed. Here are some questions we should want to have answered.
First, what democracies were studied? Among advanced liberal democracies, only the United States does not enjoy the benefit, such as it is, of legal restrictions on hate speech. Was it just a case of comparing the United States with the rest—with Australia, Canada, France, Germany, Israel, New Zealand, Norway, Sweden, the United Kingdom, and so on? Hate speech regulations in these countries vary in their provisions, but in all of them it is an offense to disseminate material calculated to stir up racial, ethnic, and in some cases religious conflict. Of course, all these countries would say also that despite these laws they are still very strongly committed to the principle of free speech. They think they can reconcile hate speech laws with the protection of free speech just as the United States thinks it can reconcile child pornography laws or defamation laws with the requirements of the First Amendment. It would be good to know how the countries mentioned above (with the exception of the United States) are coded in Mchangama and Andersen’s study of the effects of free speech protections. They believe in free speech, but, like everyone else, they too believe this freedom has certain limits.
The question also needs to be answered, because the essay presents the study as sometimes being about political freedom (in general) and sometimes about free speech in particular. Many of the countries I have mentioned will say that they are at least as free, politically, as the United States; some would say emphatically that they are much more so. So what is it that is supposed to prevent social conflict: political freedom in general or the absence of hate speech laws in particular? And what happens when these two factors pull in opposite directions—when a country such as, let’s say New Zealand, is politically much freer than the united States even though it limits free speech with modest restrictions on the dissemination of racial hatred?
Secondly—and assuming we are talking specifically about hate speech restrictions—how sensitive is the Mchangama and Andersen study to the precise drafting of hate speech laws? Many such laws provide safe havens for the free expression of views which if aired publicly in an abusive or threatening manner would attract a legal prohibition. Also, recent legislation in the UK on religious hate speech included an explicit free speech exception:
Section 29J (of the Public Order Act): Protection of freedom of expression. Nothing in this Part shall be read or given effect in a way which prohibits or restricts discussion, criticism or expressions of antipathy, dislike, ridicule, insult or abuse of particular religions or the beliefs or practices of their adherents, or of any other belief system or the beliefs or practices of its adherents, or proselytising or urging adherents of a different religion or belief system to cease practising their religion or belief system.
The British legislation prohibits the stirring up of hate against adherents of a given religion but it doesn’t prohibit criticism of the religion itself. Should this be coded, for the purposes of the Mchangama/Andersen study, as an instance of legislation protecting freedom of speech or as legislation limiting freedom of speech?
Thirdly, exactly what comparisons were made? The one that I have heard most commonly suggested is that racial antipathy is no worse in countries without hate speech laws than it is in countries that have them. But that is not the relevant comparison. Countries start from different baselines of racial antipathy. The United States for example, with its legacy of slavery, segregation, and racial terror has always had more of a race problem than (say) New Zealand. Does untrammeled free speech in the United States make American racial conflict worse or better; or does it have no effect at all? For other democracies, have hate speech laws improved matters within the countries in which they have been enacted and enforced? These are enormously difficult questions to answer because, looking back, they require us to entertain counterfactuals. We have to ask how much racial conflict there would have been, in the UK for example, if hate speech laws had not been enacted. And how are we to determine that? I suspect Mchangama and Andersen did not even attempt to answer such questions. How could they? Yet these are exactly the questions which, ex ante, it was the responsibility of the relevant governments to answer at the time they enacted these laws. They had to ask themselves up front what would be the effects of this legislation or what would be the effects of failing to enact it.
Fourthly—and this is a question whose importance Mchangama acknowledges in his essay—how far are the effects of hate speech restrictions undermined in (say) Canada, the European Union, and the Antipodes by the external effects of American free speech laws? Free speech in America is heard in Europe or Australia through the Internet, and requirements that (say) German social media take down hate speech postings originating in the United States can only partly address the problem. I acknowledge that it is unclear how this consideration should weigh in the discussion. On the one hand, it seems to load the dice against the effectiveness of hate speech laws. On the other hand, perhaps we should be more cautious about enacting such laws knowing that they will have to operate in this environment.
Finally, to what extent should a study like this concentrate on legislation alone, as opposed to legislation and the social sanctions that limit free speech in a given society? The United States does not countenance explicit hate speech laws, but recent reactions to Roseanne Barr’s racist outburst show that social sanctions on the matter are alive and well; her highly successful television show was cancelled by ABC within 24 hours of her racist tweet and she is now virtually unemployable in American television. Similar de facto restrictions on hate speech operate pervasively in numerous corporate and educational contexts. There is no doubt that this has a chilling effect on free speech. In fact, John Stuart Mill, an author quoted by Mchangama at the beginning of his essay, believed that such social restrictions on speech were much more important than legal restrictions. In Chapter Two of On Liberty, he observed that “[f]or a long time past, the chief mischief of the legal penalties is that they strengthen the social stigma.” It is that social stigma, he said, “which is really effective.” So, again, we have to ask: for the purposes of a study like the Mchangama/Andersen study, do we look only at laws or do we look also at the overall coerciveness or freedom of the social atmosphere, in figuring out how restricted or unrestricted speech affects social conflict?
I ask these questions not in any destructive (or defensive) spirit, but because I believe that the phenomena addressed in these studies are subtle and complex. We do ourselves no favors by jumping to broad-brush conclusions in the light of poorly designed studies. Now I don’t think for a minute that the Mchangama/ Andersen study falls into this category. But it would have been good to have had much more detail on all of these points, even at the cost of a little less at the beginning about Demosthenes and Marc Antony.
Free Speech as Norms Erode
In 2019—so we might wishfully imagine—Facebook found a technological fix for its problems with fake news, hate speech, and German bureaucrats. Wheeled in by a contractor who dubbed it only the Black Box, a refrigerator-sized device was plugged in, turned on, and presto! The device could gather news and information from sources around the world, evaluate their provenance, determine how high to place them in users’ feeds, and even solicit new creative content. Not only could it sniff out fakers and shut out haters, it could actively investigate suspicious posts and even place a phone call to check them out. And if it made a questionable decision, it could account for and adjust its judgment, even issuing a correction if necessary.
Understandably, Mark Zuckerberg was impressed, and so one day he unscrewed the Black Box and lifted the lid. Inside was a human person with thick eyeglasses, a cup of coffee, and the A.P. Stylebook. In other words, an editor.
There is nothing new about demands to censor or suppress speech deemed hateful or discriminatory, but the rise of social media platforms, Facebook especially, has demolished the barriers that once made it hard for trolls and bots to reach millions. In response, as Jacob Mchangama notes, Germany and the EU have established rules requiring the removal of illegal speech (which includes speech deemed hateful)—on penalty, in Germany, of stiff fines. Writes Mchangama:
In Germany alone Facebook operates a “deletion center” with more than 1,200 “content moderators” who determine whether Facebook posts violate German laws. In effect the EU and Germany has strong-armed Facebook and Twitter to enact a privatized censorship regime where laws are interpreted and enforced by faceless and nameless employees with no public scrutiny.
Social media like Facebook pose a challenge partly because no one seems sure what they are. Mindless platforms and conduits, like graffiti walls or telephone wires? That was how they seemed initially. On that model, the less they intervene in what goes on within their networks, the better. Gradually, however, understanding has migrated in the direction of acknowledging that the platforms are not neutral; they exercise editorial judgment, whether human or algorithmic. Facebook gathers news and information, prioritizes and packages it for readers, and sells readers’ attention to advertisers. We have a term for such a business: a publisher.
Although social media platforms are new to publishing, the content problems they are dealing with are as old as the hills. Any professional journalist will tell you that an uncurated publishing platform will be swamped with sewage; that is why the professional editor is the indispensable element of the news business. Any professional journalist will tell you that reader-generated content will often be scurrilous or phony; that is why newspapers check every letter to the editor.
Facebook can’t edit everything, but thinking of it as a publisher makes the flaws of the German approach clearer. Editorial standards set in law and enforced by bureaucrats are both overbroad and ineffective. Responsible publishing judgment, backed by laws against libel, threats, and other traditionally actionable abuses,works better. Journalists have been successfully exercising it for generations.
Facebook’s challenge is that it is has a vast audience and hosts more content and communities than even it can keep up with. How could it edit all of that stuff? Zuckerberg’s answer: a new kind of editing. First artificial intelligence will boil the ocean (as they say in Silicon Valley), sifting huge quantities of data to identify and rectify most problems; then thousands of humans will make calls in hard cases. How well Zuckerberg’s hybrid model will work is impossible to know in advance, but it deserves a chance. It may create its share of be controversies, but it won’t be as chilling and crude as the big stick of heavy fines and legal investigation. Confronted with controversial content, editors weigh the content’s potential offensiveness against its value. Hate-speech laws weigh only the potential offensiveness.
In May, when the world was celebrating the royal wedding in Britain, Chuck Hobbs, an African-American lawyer and commentator based in Tallahassee, wrote a Facebook post denouncing the British crown’s history of colonialism and racism. He included a photo of a young Prince Harry wearing Nazi regalia at a party. “The very essence of white privilege, especially for ‘nobles,’ is to have people make excuses for twisted behavior, such as Harry’s decision to wear a Nazi uniform,” he wrote. Facebook suspended his account.
But that wasn’t the end of the story. After former ACLU president Nadine Strossen—among others (including me)—spoke up on Hobbs’s behalf, Facebook reversed its decision. Something to think about: how would Facebook have behaved if it had faced a fine for failing to remove “hate speech”? My guess is that Hobbs would still be in exile.
Mostly, Mchangama’s essay concerns itself not with new social media but with old social regulations. As he shows, the EU and the nations of Europe—in fact, the nations of everywhere—have long afforded less protection to speech than does the United States. Mchangama cites examples of the chilling and perverse effects of such laws. As Strossen shows in her important and comprehensive (yet brilliantly concise) new book, Hate: Why We Should Resist It with Free Speech, Not Censorship, fighting hatred and bigotry by banning hate speech is like fighting global warming by banning thermometers. Even on its own terms, it does not work.
In the past, if I haven’t been as alarmed by Europe’s speech codes as Mchangama is, it’s because those theoretically oppressive statutes are embedded in fundamentally free societies, whose publics will tolerate a certain amount of bureaucratic foolishness but not wholesale censorship. On that score, however, my confidence has been shaken. Demagogues have arisen in the heart of Europe and are making inroads against liberal norms and institutions, and even where they are not in power, they have found shockingly broad public support.
Here at home, the president is a self-acknowledged internet troll who threatens to yank the broadcasting licenses of critical media outlets and calls news media the enemy of the American people. Every episode of Mchangama’s indispensable podcast series begins with the chilling sound of the U.S. president saying, “Somebody will say, ‘Oh, freedom of speech, freedom of speech.’ These are foolish people!” Disinformation, trolling, and hate speech laws may not be something new, but Donald Trump is.
And so, herewith, a friendly amendment to Mchangama’s essay. I share his concern about creeping bureaucratic censorship, but I’m more concerned about the creeping corruption of democratic norms. In the hands of Theresa May or Emmanuel Macron and their supporters, hate speech laws worry me a little. In the hands of Trump or Viktor Orban or Jaroslaw Kaczynski or Marine Le Pen and their supporters, they worry me a whole lot more. In America and in Europe, the leading menace to free expression stems less from our laws than from our politics—a fight which, alas, is only beginning.