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.
Note
[i] [Cassius Dio: 43.10]