The War on Free Speech

People around the world are becoming more censored.

The origins of free speech are old, deep, and extensive. In 431 BC, Pericles, an Athenian leader, championed the democratic virtues of free discussion and tolerance of social opposition. The irreverent freethinker Ibn al-Rawandi utilized the rich intellectual milieu of the Abbasid caliphate in the ninth century to challenge prophecy and sacred writings. Dirck Coornhert, a Dutchman, stated in 1582 that it was "tyrannical to... ban good literature in order to smother the truth." In 1766, Sweden enacted the first legislative protection for journalistic freedom. Denmark was the first country in the world to eliminate all forms of censorship in 1770.

People in modern democracies now take free expression for granted as a basic right. That philosophy, however, would never have gained traction if it hadn't been for the efforts of trailblazers who were condemned and punished for beliefs that many of their contemporaries thought radical and dangerous. They include the seventeenth-century Dutch Jewish philosopher Baruch Spinoza, who argued that "in a free state, everyone is at liberty to think as he pleases, and to say what he thinks"; the so-called Levellers of seventeenth-century England, who believed that free and equal speech was a prerequisite for egalitarian democracy; the French feminist Olympe de Gouges, who wrote in 1791 that "a woman has the right to be guillotined; she

If these forefathers were still living now, they would undoubtedly see the twenty-first century as an extraordinary golden period of free expression. They would be amazed at what people can freely and immediately discuss across time zones and borders in much of the world, with no Index Librorum Prohibitorum (Index of Forbidden Books) to censor blasphemy, no Star Chamber to punish sedition, no Committee of Public Safety to guillotine political heretics, and no lynch mobs to attack abolitionists. On a worldwide scale, the idea of free speech has been turned into an international human rights standard, and its implementation has been supported by communications technological developments unthinkable to the early modern mind.

Today, we are witnessing the dawn of a free-speech recession.

In Hong Kong, where the Chinese Communist Party has completed a stunning change of the city since clamping down on pro-democracy protesters in 2019, free expression is faring much worse. What was once a modest oasis of free speech, with a lively civil society and a critical press, is now a desolate desert where democracy campaigners, professors, and independent media are prosecuted under severe laws for what the CCP considers terrorism, secession, or sedition.

Freedom of expression and the media have also been targeted in Hungary and Poland, where authoritarian administrations see media plurality and minority views as a threat rather than a strength. Right-wing politicians in both cities have enacted legislation geared at securing de facto domination by government-friendly media outlets and restricting the visibility of LGBTQ persons.

However, ruthless repression in authoritarian nations and increasing restrictions in illiberal democracies only explain a portion of the decline in free expression. Liberal democracies, rather than being a counterweight to authoritarian onslaughts, are contributing to the decline of free expression. In Europe and North America's wealthy, established democracies, elites in political, academic, and media institutions that once cherished free expression as the lifeblood of democracy are now concerned that "free speech is killing us," as the title of a 2019 New York Times op-ed by writer Andrew Marantz put it. Many people now refer to unmediated misinformation and vile speech on the Internet as proof that free speech is being used to undermine democracy. Meanwhile, the rising power and geopolitical clout of authoritarian and illiberal governments has resulted in harsh restrictions on freedom of expression in many emerging and middle-income nations that were ready to become freer, more open societies not long ago.

True, freedom of expression may be used to exacerbate discord, foster distrust, and do real harm. Furthermore, the right to free expression is not absolute; for example, laws correctly ban threats and encouragement to violence. However, the notion that today's intense threats to democratic institutions and principles can be solved by restricting free expression is gravely flawed. As the British writer Thomas Gordon observed in 1721, laws and customs guaranteeing free speech remain "the great bastion of liberty." However, if this bulwark is not maintained, it will crumble, and without free speech, the future will be less free, democratic, and equal—and more ignorant, authoritarian, and repressive. Rather than abandoning this most fundamental freedom, democracies should reaffirm their commitment to free expression and utilize it to further liberal democratic principles and fight authoritarian advances.

SAY ANYTHING

Europe is the laboratory where the notion of free speech was first created and tested methodically. Different monarchs experimented with various mixtures of freedom and constraint across time. So far in the twenty-first century, more constraints have been introduced to the mix than liberties.

According to the Economist Intelligence Unit's Democracy Index, Western European countries' civil freedoms have declined sharply since 2008, as "infringements of free expression... have escalated." In recent years, the European Commission, as well as the governments of Austria, Denmark, France, and the United Kingdom, have pursued what German political scientist Karl Loewenstein referred to as "militant democracy": the idea that democracies must deny basic democratic freedoms to those who reject basic democratic values. France has passed legislation barring internet "information manipulation" during elections. The government of French President Emmanuel Macron has also issued decrees prohibiting the right-wing anti-immigrant organization Génération Identitaire (citing alleged hate speech) and the anti-discrimination group the Collective Against Islamophobia in France (citing the group's defense of terrorism and anti-Semitism). Even criticizing Macron is dangerous these days. A guy was fined more than $11,000 last September for portraying Macron as Adolf Hitler on billboards protesting France's COVID-19 legislation.

Europol, the European Union's law enforcement organization, coordinated a crackdown on online hate speech in seven member nations in 2020. Germany was one of them, with police searching more than 80 homes, confiscating cellphones and laptop computers, and questioning over 100 suspects about abusive remarks that included "insulting a female politician."

Denmark, along with its Nordic neighbors, is one of the world's most open democracies, with a long history of accepting even authoritarian beliefs. However, over the last decade, Danish governments on both the left and the right have restricted free speech by toughening libel laws, increasing the punishment for insulting public officials and politicians, instituting a de facto ban on wearing veils that completely cover one's face in public, passing laws punishing religious "hate preachers" at home and barring foreign ones from entering the country, broadening the scope of hate speech laws, and presenting a draft bill.

A new generation of progressives want to purge ideas they deem racist, sexist, or anti-LGBTQ.

The legal safeguards granted by the First Amendment remain robust in the United States. However, for many Americans, the underlying principle of what some First Amendment academics call "free speech exceptionalism" has lost its allure. Americans continue to favor free speech as an abstract ideal. However, in practice, such support typically disintegrates along merciless tribalistic and identitarian lines. Despite American liberalism's tenet that free speech is required to protect historically persecuted minorities from outbreaks of majoritarian intolerance, this civil libertarian ideal no longer persuades a new generation of progressives who want to purge from universities, media outlets, and cultural institutions an ever-expanding collection of ideas and views they deem racist, sexist, or anti-LGBTQ. Between 2015 and 2021, the Foundation for Individual Rights in Education recorded over 500 attempts to professionally punish professors for engaging in constitutionally authorized kinds of expression. More than two-thirds of the scholars targeted for racial or gender-based remarks faced investigations, suspension, censorship, demotion, or termination. Many of these incidents were the result of pedagogically permissible usage of unpleasant language. Last year, for example, University of Illinois law professor Jason Kilborn was suspended after a student complained about an exam question that included racial and misogynistic slurs—despite the fact that the exam only included the first letter of each term, with asterisks replacing the rest of the word.

This emerging American distrust of free speech is far from being confined to the political left. As president, Donald Trump referred to the media as "the genuine Enemy of the People," suggested strengthening libel laws, and called for prosecuting those who burn the American flag, an act protected by the First Amendment. As a result, according to YouGov surveys done during Trump's administration, a plurality of Republicans favored granting judges the authority to shut down media sites for erroneous or biased news items, as well as deporting flag burners. Despite claiming to be concerned about free speech, conservatives have responded to the rise of so-called identity politics and what they call "cancel culture" with illiberal laws prohibiting the discussion of certain conceptions and theories about race, gender, and even history in educational settings.

At times, the war on free expression has been bipartisan. Several states, as well as a bipartisan majority in the United States Senate, have passed or proposed legislation punishing businesses that support boycotts of Israel and Israeli settlements, despite federal court rulings that the right to boycott in order to influence political change is protected by the First Amendment. Many Democrats and Republicans have also found common ground on the concept of depriving social media platforms of the substantial legal protections they currently have when it comes to user-generated content, albeit the liberal and conservative arguments for this proposed measure differ considerably. Democrats aim to limit misinformation and hate speech, whilst Republicans reject Big Tech due to what they perceive to be Silicon Valley's anti-conservative tilt. However, the cumulative intensity of this hostility raises severe concerns about the long-term prospects for free expression in the United States.

EGALITARIAN OR ELITIST?

Perhaps nowhere is the loss of free expression more visible than on the Internet. Tim Berners-Lee, one of the major creators of the World Wide Web, presented his vision of a decentralized environment free of the restrictions of "hierarchical categorization systems" imposed by others in 1999. According to Freedom House, Internet freedom declined for the 11th consecutive year in 2020, because to a "record-breaking assault on freedom of speech online." The techno-dream optimist's has given place to an Internet aggressively policed by nations and corporate behemoths that carry out "moderation without representation," utilizing opaque algorithms to establish the bounds of global discourse with little transparency or accountability.

In retrospect, it should have been evident that the Internet's worldwide expansion of free expression would have negative unintended repercussions. A free and open network accessible to billions of people throughout the world unavoidably disseminates misinformation and amplifies harsh discourse in addition to disseminating factual information and cultivating tolerance. It was also anticipated that authoritarian governments whose hold on power was threatened by the Internet would spend extensively to reestablish control over the means of communication. In the twentieth century, authoritarians and totalitarians of all stripes converted the press and broadcast media into finely honed propaganda machines while brutally censoring and repressing criticism. Authoritarian nations, led by China, are now reversing the technology that was meant to make it impossible for censorship to crush opposition at home while sowing division and distrust abroad. In 2000, US President Bill Clinton famously said that China's efforts to restrict Internet access were "like trying to nail Jell-O to the wall." The Jell-O is still securely adhered to the wall, and a photograph of Chinese President Xi Jinping hangs on the nail.

History should have shown that major advances in communication technology would not convince elites and gatekeepers to gladly relinquish their advantages and bring previously silenced populations to the public arena. New communications technology is certain to be disruptive. Every new development, from the printing press to the Internet, has been met with opposition by those whose institutional power is vulnerable to disruption. Erasmus of Rotterdam, a prominent humanist thinker and prolific writer, claimed in 1525 that printers "load the world with pamphlets and books [that are] silly, uneducated, malignant, slanderous, insane, impious, and subversive." The New York Times bemoaned in 1858 that transatlantic telegraph communication was "superficial, abrupt, unsifted, and too rapid for the truth." Barack Obama, then a Democratic senator from Illinois, lauded the Internet in 2006 as a "neutral platform" that allowed him to "express what I want without censorship." Later, social media would play a significant part in his ascension to the president. However, 14 years later, following the 2020 presidential election, Obama called internet misinformation to be the "single greatest threat to our democracy."

The basic difference among Democrats regarding free speech in the digital era can be broken down to two opposed perspectives. An egalitarian view of free speech emphasizes the significance of ensuring that everyone, regardless of status or education, has a voice in public affairs. An elitist view, on the other hand, favors a public realm managed by institutional gatekeepers who can assure "responsible" information and opinion dissemination. The conflict between these two points of view dates back to antiquity and was sparked by conflicts between Athenian democracy and Roman republicanism. Ordinary free male citizens in Athens had a direct voice in political decision-making as well as the right to speak openly in public (the fate of Socrates notwithstanding). In contrast, Rome restricted free speech to a select elite; others had to walk cautiously lest they violate licentiousness rules, which might result in expulsion or execution.

THE DIGITAL CITY

Since then, the conflict between these egalitarian and aristocratic ideas has dominated the history of free expression, even as mediums and technology have altered. Outbreaks of elite panic frequently reflect genuine concerns and quandaries, but they frequently result in measures that are likely to exacerbate the issues they were intended to alleviate. Take, for example, Germany's Network Enforcement Act (NetzDG), which went into effect in 2017 and requires social media firms to delete unlawful information or face large fines. The law has done nothing to curb online hatred, but it has motivated Big Tech platforms to broaden their definitions of illegal speech and extremism, as well as turbocharge their automatic content moderation, resulting in the elimination of enormous volumes of perfectly legal information.

The law's greatest visible consequence, however, may have been to serve as a model for Internet control, lending credibility to authoritarian governments throughout the world that have expressly referenced the German law as inspiration for their own censorship measures. The rule was intended to limit online hate speech, but it has contributed to a regulatory race to the bottom, undermining freedom of expression as required by international human rights norms. Although blaming Germany for authoritarian regimes' harsh legislation would be incorrect, such countries' acceptance of limitations akin to NetzDG should give Germany and other Western democracies concern.

The value of free speech in the digital space is obvious to embattled pro-democracy activists in places like Belarus, Egypt, Hong Kong, Myanmar, Russia, and Venezuela, where they rely on the ability to communicate and organize—as well as to the regimes in these countries, which see such activities as an existential threat. And when liberal democracies implement censorship laws, or when Big Tech platforms limit specific types of communication or block particular users, authoritarian governments find it easier to legitimize their repression of opposition. In this sense, democracies and the businesses that prosper inside them may unknowingly aid in the entrenchment of regimes that feed misinformation and disinformation within those very democracies.

Societies that depend on the centralized control of information will be neither free nor vibrant.

These opposing processes are playing out in an environment in which there is no apparent legal authority, common values, or principles upon which to construct a worldwide framework for free expression. This represents a far deeper and fundamental schism between "the Digital City," where we live our hyperconnected lives in the Internet era, and "the Analog City," where life took place previous to major digitization, as defined by philosopher of technology L. M. Sacasas. Modern people are increasingly inhabiting the former while attempting to make sense of its unparalleled informational order using the latter's concepts and assumptions. As a result, there has been a trend toward fragmentation of the public sphere, with declining trust in traditional sources of information and political institutions.

The disruptive effects of transitioning from Analog City to Digital City are unlikely to abate anytime soon. Before it seized on and helped spark the Protestant Reformation, the printing press had been around for 70 years. In comparison, the World Wide Web has only been around for almost 30 years, while Google, Facebook, and Twitter were established in 1998, 2004, and 2006, respectively. The digital era may still be in its early stages, with enormous changes to come.

A flood of misinformation and conspiracy theories has taken its toll over the last two years. They have made it more difficult to contain a lethal epidemic. And they led to millions of people rejecting the validity of a presidential election in the world's most powerful democracy, culminating in the first violent attack on a peaceful transfer of power in the United States. If these diseases are only a foreshadowing of things to come in the Digital City, it's no surprise that many people still cling to the Analog City's relative certainty and informational structure. It may be tempting to simply condemn vast swaths of cyberspace as irreparably corrupt and shut them down, much as Ottoman emperors shunned the printing press in the sixteenth century in order to avoid the political chaos and religious conflict that had unsettled Europe in part due to changes brought about by the freer spread of information. That decision may have appeared logical at the time, but it now appears to have been a costly error, since the printing press eventually helped Europe build the groundwork for worldwide supremacy, even as religious battles raged throughout the continent. Modern democracies are unlikely to make such blunders. When Macron claims that the "Internet is considerably better utilized by those on the extremes" in democracies, and when Obama warns that online disinformation offers "the single largest threat" to democracy, they are exaggerating the threat and inviting overreaction.

There is no doubting that the anti-social media reaction has had an impact. Initially, Facebook and Twitter exhibited a strong civil libertarian tendency motivated by First Amendment values. Even as recently as 2012, Twitter jokingly referred to itself as "the free speech wing of the free speech party." However, as the scrutiny increased and requests for more material removal and regulation became stronger, the platforms altered their tune and began emphasizing the ideals of "safety" and "harm prevention." In a contentious British Parliament session in 2017, a Twitter vice president waved the white flag and proclaimed that the platform was abandoning its "John Stuart Mill–style worldview." And, in 2019, Mark Zuckerberg, Facebook's CEO, urged for tighter Internet regulation, knowing full well that few other platforms could devote as much effort to content monitoring as Facebook does.

Platforms such as Facebook and Twitter have changed their terms of service in recent years, resulting in the prohibition of more content and larger categories of expression. In the fourth quarter of 2020, Facebook removed 26.9 million pieces of material for allegedly breaking its hate speech policies. That is approximately 17 times the 1.6 million purported hate speech removals in the fourth quarter of 2017. In 2020, Twitter and YouTube will also erase a record amount of material. Those ensnared in the dragnet are not all neo-Nazis or violent jihadis; activists recording war crimes in Syria, racial and sexual minorities using slurs to expose intolerance, and Russians critical of President Vladimir Putin have all had their content removed. No government in history has ever had such wide influence over what individuals all around the world say, write, read, watch, listen to, and share with others.

Any society that grows reliant on centralized control of information and opinion will, in the end, be neither free nor lively. Attempts in the past to cleanse the public realm of views deemed extremist or damaging by authorities or elites have tended to exclude the poor and propertyless, immigrants, women, and religious, racial, ethnic, national, and sexual minorities. Until recently, individuals in authority considered persons in these categories to be too credulous, fickle, immoral, stupid, or dangerous to have a say in public affairs.

Liberal democracies must accept that individuals and institutions cannot be protected against hostile propaganda, vile content, or disinformation in the Digital City without jeopardizing their egalitarian and liberal principles. Whatever basic reforms governments must implement to guarantee that humans can grow, trust one another, and prosper in the Digital City, a strong commitment to free speech should be acknowledged as a crucial component of the solution rather than an obsolete ideal to be abandoned.

THE POWER OF SPEECH

Rather than abandoning free speech to sustain democracy, countries must rediscover its great potential. Recent history provides both encouragement and severe warnings about the consequences of allowing authoritarian nations to win the battle over where to establish redlines. When the United Nations negotiated the Universal Declaration of Human Rights (UDHR) and the legally binding International Covenant on Civil and Political Rights (ICCPR) in the years following World War II, liberal countries and the Soviet bloc battled violently over the limitations of free expression. In line with Article 123 of Joseph Stalin's 1936 constitution, which barred any "promotion of racial or national exclusiveness, hatred and contempt," the Soviets wanted to impose a requirement to forbid hate speech.

In the face of such pressure, Eleanor Roosevelt, the first head of the United Nations Commission on Human Rights, emerged as an outspoken supporter of free speech maximalism. She cautioned that the Soviet ideas were "very hazardous" and would be "exploited by authoritarian states." Democracies were able to resist hate-speech restrictions in the UDHR, but the Soviet goal finally prevailed: Article 20 of the ICCPR requires nations to outlaw certain types of incitement to hatred. Predictably, Soviet-backed communist regimes deployed hate speech and incitement legislation as part of their armory against domestic dissent and political opponents, a practice that authoritarian states continue to employ. However, the original debate at the United Nations over the boundaries of free expression in international human rights law was only the first of multiple rounds that would be waged over the next few decades.

Under the auspices of the Conference on Security and Cooperation in Europe, 35 nations signed the Helsinki Final Act in 1975. The primary goal of the legislation was to reduce Cold War tensions, but Western democracies pushed the Soviet bloc to embrace human rights measures. During the protracted talks, the communist governments objected to the human rights rhetoric. They were already struggling to jam the radio signals of Western radio stations, which carried unfiltered news into the homes of millions of people behind the Iron Curtain. Soviet officials said in 1972, using terminology eerily similar to that presently employed by many democratic leaders, that they would never accept "the spread of... racism, fascism, the worship of violence, animosity among peoples, and false slanderous propaganda." Nonetheless, the Soviet bloc swallowed the human rights concessions, which they saw as mere talk.

Instead of sacrificing free speech, democracies must rediscover its enormous potential.

People in Eastern Europe swiftly learnt about the new rights that their governments had solemnly sworn to preserve through newspaper stories, word of mouth, samizdat publications, and Western radio broadcasts. And probably none of the rights protected by the Helsinki Final Act was more crucial than freedom of expression. Western countries and emerging human rights groups embraced the idea and practice of free speech to strengthen and magnify the complaints of Soviet-bloc dissidents. The renowned Charter 77 declaration, written in 1977 by a diverse group of Czechoslovak dissidents, including future Czechoslovakian leader Vaclav Havel, argued that "the right to freedom of speech, for example, protected by Article 19 of the ICCPR, is in our situation entirely imaginary." After Czechoslovakia's Velvet Revolution in 1990, Havel, who had become president, delivered a celebratory address to the United States Congress:

When [Communist authorities] arrested me . . . , I was living in a country ruled by the most conservative communist government in Europe, and our society slumbered beneath the pall of a totalitarian system. Today, less than four months later, I’m speaking to you as the representative of a country that has set out on the road to democracy, a country where there is complete freedom of speech.

Similarly, Lech Walesa, the trade union leader who went on to become Poland's president in the post–Cold War period, said that "one of the essential liberties at issue" in his victorious campaign to demolish communism was "freedom of expression." Walesa stated that "human life becomes worthless without this basic freedom; and once the truth of this reached me, it became part of my entire way of thinking."

Later, free speech helped to bring apartheid in South Africa to an end, as censorship and repression were employed to uphold white dominance. Nelson Mandela delivered a speech in 1994, soon before winning the country's first free presidential election, in which he acknowledged the foreign media with throwing a worldwide spotlight on the apartheid regime's horrors. He then promised to repeal apartheid-era rules restricting free expression, a freedom he stated would be one of South Africa's "fundamental principles."

More recently, in 2011, the Obama administration scored a rare but significant victory in the midst of the present era's free-speech slump. For more than a decade, the Organization of Islamic Cooperation has rallied majorities in the United Nations General Assembly and the United Nations Human Rights Council to support resolutions against "religious defamation." The OIC's effort was an attempt at the UN to impose a legally binding prohibition on religious blasphemy, essentially extending the writ of governments like Egypt, Pakistan, and Saudi Arabia that harshly penalize satire, criticism, and irreverent views of Islam. In response, the US, with the help of a handful of European democracies, mounted a multilateral worldwide operation to thwart the OIC's efforts. The tactic succeeded in not just defending but also expanding existing free-speech rules, resulting to the approval of a resolution stating that human rights legislation protects people, not faiths or ideologies. Despite condemning promotion of incitement to hatred, the resolution only advocated for the punishment of "incitement to imminent violence based on religion or belief." Furthermore, the resolution contributed to the correction of international human rights law's original sin by reducing the responsibility to ban incitement to hatred, which was incorporated into the ICCPR at the request of the Soviet Union in the 1960s.

THE TALKING CURE

These cases show democracies how to foster the essential virtue of free expression. Instead of initiating worldwide campaigns to curtail such freedom, democracies should band together to increase the world's decreasing venues for dissent and civil society. One approach to do so is to coordinate efforts to expose and denounce censorship and repression, as well as to provide civil society groups and dissidents with technical assistance to magnify opposition and avoid oppressive actions. Democracies must be cautious in maintaining standards within international organizations and preventing authoritarian nations from diluting hard-won speech safeguards.

Democracies should also advocate for global Big Tech platforms to embrace rigorous human rights standards voluntarily in order to guide and educate their content moderation policies and practices. This would cement the vast and ever-changing terms of service that previously set the bar much lower than what emerges from human rights norms and constitutional freedoms in modern countries. In nations where social media may be the only means for individuals to avoid state censorship and propaganda, such a step would also help internet companies resist pressure to function as privately outsourced censors of dissent.

In addition to direct government action, civic society and technology businesses may help to promote and safeguard free expression. A small business has risen up to map, evaluate, and refute disinformation and propaganda, which is a far better strategy than trying to prohibit damaging speech. Similarly, multiple studies show that concerted campaigns of intentional "counterspeech" can act as an antidote to online hate speech, which commonly targets minorities. For example, the Swedish online community #jagärhär (#iamhere) has tens of thousands of members who reply to hostile social media posts—a strategy that has been adopted by organizations in many other countries.

Innovative journalists, activists, and collectives such as Bellingcat are also leveraging open-source information and data to expose authoritarian rulers' criminal activities and human rights breaches. Unlike the suffering of victims in the Soviet Union's gulag, which the world was mostly unaware of, the horrific conditions in China's network of "reeducation camps" in the western region of Xinjiang have been exposed by journalists, activists, and victims using smartphones, social media, satellites, and messaging apps.

The free-speech recession must be opposed by individuals all around the world who have benefitted from the revolutionary activities and sacrifices of millions who came before them and battled for the prized freedom to express oneself. It is up to those who already have that right to defend tolerance of heretical ideas, limit the spread of disinformation, disagree without resorting to harassment or hatred, and treat free speech as a principle to be upheld universally rather than a prop to be selectively invoked for narrow, tribalistic point-scoring. "If vast numbers of people are interested in freedom of expression, there will be freedom of speech, even if the law bans it; if public opinion is slow, uncomfortable minorities will be persecuted, even if laws exist to protect them," George Orwell said in 1945. Free speech is still an experiment, and no one can guarantee the outcome of providing global platforms to billions of people in the digital age. However, the experiment is admirable and should be continued.

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