(Article by Molly McCann republished from AmericanMind.org)
It is important to understand how fundamentally different our country is from the rest of the world if we want to understand why Big Tech’s speech codes should not be inflicted on American citizens in American jurisdictions. Put another way, if the would-be monarchs of Silicon Valley get their way, their speech codes will ultimately undermine our American values of free speech and the First Amendment itself.
A Tale of Two Speeches
In America, the First Amendment expresses an absolutist viewpoint on speech: “Congress shall make no law...” (emphasis added). From there, the courts have developed a framework that governs speech. Not all speech is “protected” speech (e.g. fighting words and true threats), and we have standards that determine if, when, where, and how the government can limit speech. All told, American speech law can be quite complex, but philosophically it begins at that intransigent right: “Congress shall make no law.” This principle permeates the American mindset and is defended by our written and entrenched (i.e., difficult to change) Constitution.
Europe, however, begins from a qualified position and immediately seeks to balance speech with other competing interests. Despite aspirational language to the contrary, European law begins with the assumption that speech is a privilege, the contours of which can be defined and redefined by the government. Article 10 of the European Convention of Human Rights makes this clear.
1.Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers….
This sounds good until you read the second paragraph:
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary. (emphasis added)
The blunt fact is that most Europeans have freedom of speech at the discretion of their governments. Think about the wide differences of opinion there are on what speech restrictions are “necessary in a democratic society”! The European crusade against hate speech (a label that can be applied to almost any disfavored speech) is a perfect example of the abuse that can flourish when speech isn’t enshrined in a written and entrenched constitution, and is instead a discretionary standard subject to majority votes of prevailing legislatures.
The United Kingdom has yo-yoed back and forth on banning “insulting” speech as hate speech. The term has been added, dropped, and added again over the past decade. According to a 2013 article in the Guardian, when ‘insulting’ was included in the hate speech law “arrests and prosecutions rang[ed] from an Oxford student asking a police officer ‘Do you realise your horse is gay?’ which Thames Valley police described as homophobic and ‘offensive to people passing by’, to a 16-year-old holding up a placard that said ‘Scientology is a dangerous cult’.” Hate speech can mean almost anything, and in 2018, British police were rounding up and questioning people for tweets that criticized gender reassignment surgeries for children. As the culture slips, standards that can be amended by majority legislatures cannot defend speech rights.
The United States Constitution’s protection of speech has no tempering clause. Our court-created frameworks all seek to implement and obey the opening, sweeping directive of the First Amendment; we do not recognize a “hate speech” exception to the First Amendment; and our speech rights are certainly not at the mercy of every successive Congress’s whim. We can truly boast speech rights—and the ability to assert those rights against our government.