Freedom of speech, but how free exactly?

2012-09-23

Bill of Rights

The Bill of Rights, adopted by the first Congress of the United States in 1789 | National Archives

The last couple of weeks offered ample opportunity for being disgusted. Disgusted with a world that allows agitators at the fringes to dominate the agenda and relish in senseless violence. Disgusted with politicians who try to score cheap political points over the death of their compatriots. And disgusted with leaders willing to sacrifice free speech over the mere threat of violence.

Americans cherish public speech. It was something I learned on my very first trip to the United States, over 20 years ago. A lady stood on the sidewalk in front of a store in Los Angeles, wearing a simple sign: “This dry cleaner ruined my favorite dress.”

That lady greatly impressed me. After all, she had decided not to suck up her frustration, or to settle for a private shouting match. Rather, she had taken action. Would her picketing be enough to bankrupt the guy? Probably not, but that didn’t deter her from trying. And she certainly understood the power of public speech.

The significance of free speech in the American society is very much evident in American jurisprudence. Based on my casual following of Supreme Court decisions (admittedly not a sound statistical base) I would think that the plurality of decisions is rooted in the First Amendment’s Free Speech Clause.

Some Americans, though, seem to overestimate the range of this constitutional protection. A staple of online forums are people complaining of a violation of their free speech rights when their comments are removed. They overlook that the constitution only protects them from the government interference, not from private repercussions as those from a web site provider.

Speech can, in fact, have dire consequences, and the Free Speech Clause does not indemnify me from those.

When I exercise my right to free speech, I may end up with a bloody nose, or lose my job, or find my house burned down. I may, in turn, sue the perpetrator for the bodily harm he caused, for discrimination, or for the loss of my home. But I cannot sue him for violating my right to free speech because I have no such right against private individuals.

Things get more ugly, of course, when my speech not only causes my house to burn but my neighbors’ houses as well. That’s why even in the United States, there are limits to free speech, such as those set forth in this argument for banning the anti-Islam video.

In Germany, people are more amenable to accepting limits on speech, mostly for historical reasons.

The Nazis had impressively used speech to set in motion a machinery of hatred, murder, and pandemic destruction. As part of the “never again” mantra that has pervaded post-war Germany, the promotion of Nazi ideology, even the display of Nazi symbols, and the denial of the Holocaust were outlawed.

People seem fine with this. There is a consensus that nothing good could ever come from such speech, so why allow it? That, of course, is the kind of moral judgment that the U. S. Constitution would prohibit, which is a fundamental difference between the two nations.

Germans are often surprised to learn that Nazi propaganda is freely disseminated in the United States, and neo-Nazi organizations like to host their web servers there. It seems strange that the very country who lead the world in liberating Europe from the Nazis would be a safe haven to those people. It takes a moment to realize that it is proof not of contradiction but rather of radical consistency.

Apart from the historical background, it is also true that the constitutional rank of free speech is lower in Germany. Here, the pivotal role that free speech has in American jurisprudence is occupied by the constitutional command that “human dignity is inviolable”, another learning from the Nazi past.

Also, free speech is not an absolute right in the German constitution. It is more narrowly tailored as a person’s “right to freely express and disseminate his opinion”, and “[t]hese rights shall find their limits in the provisions of general laws, in provisions for the protection of young persons, and in the right to personal honor.”

Most Germans would not regard the resulting laws as a limitation of personal liberty – those are things you simply don’t do. Germans usually find much more substantial limitations to free speech in the archaic American rules on obscenity which can get you in legal trouble for describing in neutral language our God-given anatomy. It’s worthwhile to keep in mind how much a fundamental concept like free speech can differ in practical terms even between countries from the same cultural hemisphere.

Without doubt, it is a valid discussion whether the anti-Islam video should be banned as hate speech. The point could be made under U. S. law, and even more so under German law.

I was surprised, though, that that was not the discussion that we witnessed. Instead, it seemed that governments of both nations were more bent on appeals and appeasement than taking unambiguous positions for free speech, against defamation, and against violence.

And no, I did not consider the statement from the U. S. Embassy in Cairo appeasement. Those guys are diplomats. It is their job to bridge cultural divides with diplomatic language, and they did what they thought they could to discourage violence.

I was more worried to learn that the chairman of the Joint Chiefs of Staff, General Martin Dempsey, personally called Terry Jones in Florida to beg him to play nicely. So the nation’s top general stoops down to pleading for the assistance of an obscure pastor who plays in the intellectual league of those torching the nation’s embassies? I mean, didn’t he have a drone to spare?

And then there was the reaction of the German chancellor, Angela Merkel. In her ambivalence, a typical Merkel: She did not call for a ban on the movie as such. Rather, she said that the authorities should investigate whether to ban the public screening of the movie.

Her reasoning: She feared that the public screening could lead to violence in the streets from Muslims opposed to the movie.

Let’s stipulate that there are instances of speech so inflammatory that it needs to be banned. But then it should be banned for its content, for violating a moral threshold. To even suggest banning a public screening for fear of the reaction of a violent minority is a cowardly capitulation that impeaches any leader of the free world.

Admittedly, it is a complicated situation. Spreading hatred is simple and fares well with simplistic answers. Spreading peace is a delicate mission that calls for insight and balance. But particularly when things get complicated it is important to hold on to core values for guidance.

That is even more true in light of bigger challenges ahead. Free speech takes place less and less in public places governed by the people. It has moved online, where it is subject to rules and restrictions by private entities, as those forum posters mentioned before have already found.

All the sudden, not our governments and laws, but those private entities become the arbiters of which speech is appropriate, and where, and for whom.

It does not bode well that Google boldly stands up to the embarrassingly demure request of the United States’ democratically elected government, while caving in to the pressure of Arab regimes. This is the same Google that ruthlessly hunts down suspected obscenity or alleged copyright infringements based on their obscure policies of right and wrong, while submitting itself to China’s censorship as long as it seemed practical.

Unlike governments, private entities are not beholden to the people, but to economic success. This of necessity will lead to opportunistic decisions, which is why we cannot, and should not, expect them to be bulwarks of civil liberties.

The risk in entrusting our free speech infrastructure to the international marketplace is that our civil liberties will be reduced to the smallest common denominator. What remains of free speech if the German restrictions on Nazi propaganda, the American rules of decency, the Arab protection of Islamic symbols, the Saudi’s view on gender equality, and the Chinese ideas of political discourse are all combined?

So we need our governments to boldly defend and propagate our civil liberties in the international arena. Our economies may not stand up to the Chinese in the long run, and our populations may be outnumbered by the Islamic world, but liberties like free speech must be our hemisphere’s lasting legacy.

* * *

Update: David Drumm argues that Sarah Chayes is wrong in her argument for banning the anti-Islam video. A valid debate can be had about this question, legally, socially, and otherwise. I’m glad to reference two opposing views here, not endorsing either for a lack of competence on the legal issues.

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