Future Tense

The American Approach to Free Speech Is Flawed—but It’s the Best Option We Have

Those advocating more aggressive government policing of online hate put enormous trust in officials to draw boundaries around permissible speech.

A framed copy of the constitution propping up the Google, Facebook, and Twitter logos.
Photo illustration by Slate. Photos by Getty Images Plus.

This article is adapted from Dare to Speak by Suzanne Nossel. Copyright © 2020 by Suzanne Nossel. Used with permission by Dey Street, an imprint of HarperCollins. All rights reserved.

At a time when misinformation and disinformation are running rampant, hateful speech pollutes social media platforms, and the drive to eradicate racial symbols and slurs has accelerated, the notion that government ought to be doing more to curb nefarious speech seems almost obvious. Why wouldn’t we want the government banning the spread of crackpot coronavirus cures or false information about the security of mail-in ballots?

Well, that’s just it. Both those examples of false information have been purveyed by none other than President Donald Trump, from the White House lectern or the digital equivalent in the form of his Twitter account. Although it is unprecedented, and we may fervently hope that no future president will traffic in falsehoods to the degree Trump has, his penchant for lying, misleading, menacing critics, and gilding facts to burnish his own reputation offer a powerful illustration of why the Constitution’s Framers and subsequent courts in the U.S. have sharply restricted the power of our elected leaders to ban and punish speech. Those advocating more aggressive government policing of online hate, racial slurs, and speech that evinces bias put enormous trust in officials to draw boundaries around permissible speech. If Trump were not constrained by the First Amendment, it is pretty clear he would have barred the publication of critical books, denied press passes to journalists he considered unfriendly, punished media outlets viewed as hostile, and cracked down harshly on street protests; he tried to do all these things and—in some instances—has been successful up to a point until other officials or courts have stepped in to stop him.

Both our own history and the experience of countries around the world illustrates that, on balance, when afforded leeway to oversee speech, authorities will use that power to serve their own ends, stifling dissent and silencing those who challenge them. While the U.S. allows the regulation of speech in a defined set of categories—including things like defamation, libel, harassment, threats, and false advertising—beyond these finite exceptions to the First Amendment, we approach other forms of mendacious speech through measures that do not involve government crackdowns. The system is far from perfect, but a closer look at the approaches taken in the rest of the world reveals that there is no ideal paradigm for government regulation of speech and that before we call upon Congress or the courts to exercise wider discretion over what the citizenry can or cannot say, we need to think hard about the power we are affording them, and about who may be empowered to use—or misuse—it.

There is a wide distance between the harsh repressiveness in countries like China and constitutionally enshrined free speech in the United States. As critics of U.S. permissiveness toward speech like to point out, virtually every other democracy in the world—including the United Kingdom, Canada, Norway, and elsewhere—allows greater government restraints on speech than does our First Amendment. These countries generally hold themselves to international law as codified in the International Covenant on Civil and Political Rights, or ICCPR, adopted in 1966. Article 19 of the ICCPR says, “Everyone has the right to freedom of opinion and expression; the right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media regardless of frontiers.” It permits legal restrictions on speech as “necessary for respect of the rights or reputations of others, for the protection of national security, public order, or public health or morals.” Article 20 prohibits “propaganda for war” and says, “Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.”

As interpreted by the U.N.’s Human Rights Committee, to pass muster under Article 19, speech bans must:

1. Be provided by law (excluding laws that are too vague).
2. Be necessary (which means they must be the least intrusive means to achieve the desired ends).
3. Achieve an enumerated legitimate public interest.

The language of Article 19 is far-reaching and prescient, insofar as it encompasses “all media regardless of frontiers,” a phrase that has become the predicate for insisting that international free speech protections are as robust online as off. The concerns raging now in the U.S. over hateful speech and bigotry are not unlike those that informed the treaty, which was drafted in 1954, in the aftermath of the Holocaust. The United States signed that treaty but entered a “reservation” to Article 20, meaning that it committed to implementing Article 20 only insofar as it is consistent with the First Amendment. This departure encapsulates one key difference between the American approach to hateful speech and that of much of the rest of the free world—the U.S. bans only incitement to “imminent violence” and not incitement to discrimination, hostility, or even violence in general.

There’s a strong case to be made that the U.S. system is superior. The constitutions of many European countries, including Austria, Germany, Hungary, Italy, and Poland, guarantee freedom of expression but permit considerable restrictions. The U.K. lacks a written constitution but has a Human Rights Act that seeks to balance freedom of expression and equality. Provisions aimed to curtail forms of hateful speech exist in a wide range of European national laws and regulations. These include certain criminal law provisions, administrative restrictions that can sanction and fine errant speech, and civil law remedies that allow hate speech victims to seek compensation through the courts. One of the most evident problems in the European approach is that the application of anti-hate laws is discretionary, which can mean that they are used selectively to target speech that is unpopular or considered unfriendly by the government. The results are frequent charges of double standards, politicization, and the abuse of the law to suppress unwelcome viewpoints.

In France, the former head of ACT UP, the HIV/AIDS activism group, was fined in 2016 for using the word homophobic. In 2019, the head of the French #MeToo movement (known by the hashtag #balancetonporc or #exposeyourpig) was found guilty of defamation for publicizing comments that her harasser did not deny making. In another instance, activists were fined for wearing T-shirts advocating a boycott of Israel. Moreover, speech-suppressive laws may succeed in banning words and phrases, but not sentiments. In Germany, prohibitions on Nazi nomenclature have led to the emergence of a subversive lexicon of terms (such as 88, named after H, the eighth letter of the alphabet, to allude to “Heil Hitler”) meant to evoke bigotry to those in the know.

A variety of European restrictions on speech, including genocide denial laws, blasphemy laws, laws that protect royalty from criticism, and criminal defamation laws, lead to contentious results that call into question adherence to Article 19. During a debate over proposals to ban the so-called defamation of religion at the United Nations during the first term of the Obama administration, when the U.S. delegation argued that such a prohibition would violate international free speech safeguards, diplomats from the Islamic Conference countered that many European countries ban Holocaust denial. They argued that there was a double standard in prohibiting speech offensive and potentially harmful to Jews while objectionable speech related to Muslims was permitted. While the two examples are far from identical, the discrepancy nonetheless fed into their sense of vulnerability and victimization, since they didn’t believe the law was being applied fairly.

As deputy assistant secretary of state for international organizations, I was part of the U.S.
delegation. Our credibility in these discussions was enhanced by being able to say that Holocaust denial laws would be every bit as unconstitutional in the United States as would prohibitions on depicting Muhammad. The minute we begin delineating new categories of hateful speech that are beyond First Amendment protection, we will open the door to charges of unfairness and double standards. On the flip side, if we were to vow to fully protect all groups that feel victimized by denigrating speech, the quantum of prohibited expression could be boundless.

Journalist Glenn Greenwald has cataloged cases that he believes represent politically motivated efforts by democratic governments to target and punish left-wing activists.
Greenwald points to a trend of using such laws to punish critiques of Israel, a sensitive subject given Europe’s history of anti-Semitism and a recent spike in anti-Semitic sentiment and activity. Greenwald cites the conviction, upheld by France’s highest court, of 12 pro-Palestinian activists who wore shirts advocating a boycott of Israel, on the grounds that they violated a ban on provoking discrimination or hatred based on national origin or religion. Nadine Strossen has collected similar cases, such as the 2014 arrest of a British political candidate for quoting a passage from a book by Winston Churchill criticizing the treatment of women in Islam. As Strossen writes, hate speech laws in these countries “uniformly vest enforcing officials with enormous discretionary power, and consistently have been enforced to suppress unpopular views and speakers, including political dissent and minority speakers.”

Another worry is that such laws, by suppressing speech, lead to malign views being spread surreptitiously through coded language and underground web platforms. Such surreptitious dissemination of noxious ideas is arguably more dangerous because it spreads mainly to those who are susceptible to it and is shielded from rebuttal or counterspeech. Pushing noxious speech into encrypted channels makes it more difficult for law enforcement to track the spread of extremist ideologies. When bigoted sentiments are out in the open, you can trace who is expressing them, dispute them, and protect against attempts to act on them.

That government regulation of speech can go badly wrong does not mean we should foreclose discussion of how the law might need to evolve. The less absolutist free speech regimes in place in Europe have allowed some important trials in the regulation of hateful speech online. For example, in June 2017, Germany implemented something called the Network Enforcement Law, which requires social media companies to remove content that violates the country’s laws against hate speech and defamation. The law depends heavily on the tech platforms for enforcement, pressing them into service as content regulators charged with implementing government mandates. The law imposes stringent deadlines (24 hours for the removal of “manifestly unlawful” content) and stiff penalties (up to $56 million) for violations. Critics worry that as companies step into the role of regulating the legal perimeters of speech, they may err on the side of removing all potentially offensive speech to avoid risk. Others object that the enforcement of the law against far-right politicians, such as leaders of Germany’s right-wing Alternative fur Deutschland party, has allowed these polarizing figures to cast themselves as martyrs.

About 18 months into the application of the Network Enforcement Law, it appears to have prompted significantly more muscular enforcement of the platforms’ own community standards, resulting in the removal of substantial amounts of content. While it’s too soon to judge the law’s effects, the prospect of Americans from every political and ideological stripe filing reports to complain about one another’s speech with the specter of hefty fines under a similar law here (somehow assuming away the First Amendment) is cautionary at best.

Similar concerns have been voiced regarding the “Christchurch Call,” an agreement drafted after the terrorist attack on mosques in Christchurch, New Zealand, that killed 51 Muslim worshippers in March 2019. The nonbinding pact among 17 governments and eight leading platforms, including Google, Facebook, and Amazon, invited social media companies to pledge to do more to eradicate violent and extremist content from their platforms. The Trump administration declined to sign on, a decision one commentator defended because of the agreement’s “deliberate, strategic vagueness” about what would be regarded as legitimate free expression under its terms.

Regulations of so-called fake news have also prompted free speech concerns, as in the case of Singapore’s anti-misinformation law, which grants the government sweeping powers to suppress and censor unfavorable coverage. The country’s Protection from Online Falsehoods and Manipulation Act criminalizes the spread of “false statements of fact” that compromise security, “public tranquility,” public safety, or foreign relations. The law imposes harsh sanctions of up to $37,000 or five years in prison for simply sharing false information and $740,000 and 10 years in prison for tech platforms that fail to remove such content. Advocates decry the law as yet another tool in the government’s hands to suppress anything that challenges state-mandated narratives.

There is no sign that Europe’s or other nations’ tougher approach to hateful rhetoric is tamping down noxious sentiments or acts of bigotry. In the year since the adoption of Germany’s Network Enforcement Law in late 2017, anti-Semitic crime and crimes targeting foreigners spiked by nearly 20 percent, a rate of increase slightly above the 17 percent year-on-year jump most recently recorded in the U.S. Anti-Semitic attacks are also trending sharply upward in France, the U.K., and Canada. To insist that tough measures be adopted to tamp down hateful speech without any evidence that such regulations mitigate hateful sentiment or actions runs the risk of further politicizing free speech and playing into the hands of those who rally followers by claiming that their speech rights are being trammeled.

Most critics of these measures agree that the potential harms of speech on the Internet—the dissemination of hateful views, the spread of misinformation—are all too real. What concerns them are the risks that have historically accompanied government restrictions on speech: overenforcement, arbitrary enforcement, selective enforcement to protect those currently in power, and the misplaced faith that banning hateful ideas is a substitute for the hard work of addressing them at their roots.

In contrast, some narrowly drawn forms of viewpoint-neutral government content regulation might well pass constitutional muster. The Honest Ads Act, sponsored by Sens. Mark Warner, Amy Klobuchar, and Lindsey Graham, would impose disclosure and reporting requirements for online political campaign ads; the provisions closely resemble those that have long applied in the offline world for television commercials, print ads, and billboards. The purpose of the act would be to inform Americans about who is paying for the ads they view online, which would help defend against the kind of foreign election interference that occurred in 2016. Critics of the act fear that it would impair political trench warfare that depends on the ability to obscure the movers and motives behind messages. A blanket refusal to entertain digital-content-regulation proposals—or even the mere extension of offline obligations to the digital realm—is spurious. First Amendment jurisprudence has always evolved, taking account of new threats to speech and new harms that may derive from expression.

Perhaps the best argument against progressives seeking new restrictions on speech is a simple reminder of who, as of this writing, would have the power to enforce them. Were it not for the First Amendment, it’s easy to imagine that Trump’s attacks on journalists and media outlets would become politically motivated prosecutions, or that his loathing of political antagonists would land those critics in jail. Proponents of greater government curbs on speech seem to envisage a Congress and Justice Department that would share their own outlook on the harms of hateful speech and the need to shelter its victims. But experience suggests that, in practice, governments empowered with the ability to restrict speech use that power not to protect the vulnerable but to preserve their own prerogatives.

Future Tense is a partnership of Slate, New America, and Arizona State University that examines emerging technologies, public policy, and society.