By Padraig Colman
We are hearing a lot about free speech these days. At the start of Trump’s second impeachment trial, lead House impeachment manager Representative Jamie Raskin, a Democrat representing Maryland, rejected the assertion that the president was exerting his right to free speech in the comments he made before the Capitol riot. Raskin made the case that Trump used his influence as president to provoke the Capitol attack and could not be portrayed as an average US citizen. “This case is much worse than someone who falsely shouts fire in a crowded theater. It’s more like a case where the town fire chief, who’s paid to put out fires, sends a mob not to yell fire in a crowded theater but to actually set the theater on fire”.
The First Amendment of the US Constitution broadly protects the right to free speech and freedom of expression in the US but there are limitations. There are examples of “unprotected” speech. A 1969 Supreme Court ruling, Brandenburg v. Ohio, stated that the First Amendment does not protect speech “producing imminent lawless action” or that “is likely to incite or produce such action.”
Freedom to be Hateful
The president was notorious for his use of social media to spread lies and false assertions and to whip up mob hysteria. There are concerns that the concept of free speech has to be considered anew now that the internet dominates so many people’s lives. Things are not the same as they were in the days of print media. What value is freedom of speech in an internet-dominated world that fosters conspiracy theories, foreign manipulation, mob harassment campaigns and dissemination of false information?
How far can one go in curbing hate speech? In his 2007 book, Freedom for the Thought That We Hate: A Biography of the First Amendment, Antony Lewis warns the reader against the potential for governments to suppress freedom of speech in times of fear. Jeremy Waldron, professor of social and political theory at Oxford University, was critical of Lewis’s stance on hate speech. Waldron argues the need for a public climate of mutual respect and tolerance. Waldron believes that it is sometimes necessary to use the law to curtail freedom of speech if speech infringes on the freedom of another.
Most Sri Lankans will be fortunate to be unaware of Katie Hopkins. She appeared in the UK version of The Apprenticeand then became a columnist and “celebrity”. She describes herself as a “conduit for truth”. On 17 April 2015, Hopkins wrote that migrants were “cockroaches”. This appeared in the same week that 400 migrants drowned in the Mediterranean and more than 10,000 were rescued. An online petition to ban Hopkins from television accumulated over 75,000 signatures. By 21 April, a petition calling on the Sun to sack Hopkins attracted 250,000 signatures. Julie Burchill is a celebrated polemicist and quite practised at giving offence (and taking it without flinching). Burchill detests Hopkins, her views and unprofessional mode of expressing them. However, Julie would not want Hopkins to be silenced. “I’m of the opinion that we fought too hard for freedom of speech to have a wrong ‘un like this define the terms of it – one day you’re censoring people who offend you, the next you are being censored by people you offend – it’s a slippery slope”.
Renaissance Man Emil van der Poorten, who often wrote columns about the importance of freedom of speech, once called on Sri Lankan editors to silence my good self. What a tragedy that would be!
Josie Appleton, a free-speech campaigner, argues that: “Hate speech regulation curtails the moment of ideological conflict, when no crime has been committed. In this, the state appears to be defending the victim. But it is actually defending itself, as the mediator and moderator of public debate, and the judge of what is and is not acceptable.” She describes many frivolous and harmful prosecutions in the UK. We must have the right to offend. No one has the right to be protected from being offended.
Dare to Speak
Suzanne Nossel is the CEO of PEN America, the human rights and free expression organisation. She previously served as Executive Director of Amnesty International USA. She has written many articles on the subject of free speech and is the author of the book Dare to Speak: Defending Free Speech for All. She recently had a conversation on the website Persuasion which was published under the title Can Free Speech Survive the Internet?
She is, in general, against any suppression of free speech but acknowledges: “If the marketplace of ideas is flooded with disinformation, the quest for truth breaks down, impeding the ability to sort fact from falsehood, and even discern the best ideas.”
Nossel pointed out that “most of the free-expression jurisprudence around the world deals with infringement on speech by governments. Today the world has changed so dramatically in a very short time. “Entities that collectively – one, two or three companies – account for such a vast swath of the public square.” She feels “There’s a kind of public consensus that a more aggressive approach to policing by these private companies is warranted.”
She is wary of any suppression of free speech. “The question is how we deal with political speech, where decisions can have boomerang effects if particular groups feel silenced. The power to police speech historically, and in our own time, tends to be unbalanced and used to suppress the views of the dissenters, the marginalised, those out of power, and to reinforce the prerogatives of those who have the greatest control.”
A commenter countered that viewpoint. “Idly standing by and permitting coordinated mass disinformation campaigns involving government officials and private media entities isn’t protecting ‘free speech’ or democracy. It’s encouraging fascism.”
Even the expression of hateful views can be beneficial Nossel believes. “But one of the benefits of free speech is that it’s a safety valve: If people feel they’re able to express themselves and engage in discourse, their propensity to resort to violence may be lessened, because they have that satisfaction of knowing that they’ve engaged an audience, and that their ideas are being wrestled with. If that is thwarted, the impulse to resort to other means can rise to the forefront.”
In an interview with the Los Angeles Review of Books she emphasised the point that defenders of free speech had a responsibility to push back against hate speech and bigotry: “defending free speech also means picking up the obligation to dismantle barriers to participation and opportunity – enabling and encouraging many more voices to be heard.”
Nossel provides some practical steps in her book as does historian Timothy Garton Ash in his book. Ash has set up a website to encourage debate on the topic of free speech. It provides a useful complement to his book Free Speech: Ten Principles for a Connected World.